SUPREME  COURT  OF  ILLINOIS, 


THIRD    GKR^ND    DIVISION. 


OTTAWA,  APRIL  TERM,  A.  D.  1866. 


FRANKLIN    PARMELEB, 
DAVID    A.    GAGE, 
WALTER    S.  JOHNSON, 

Appellants, 


vs. 


DANIEL    LAWRENCE, 

Appellee. 


BRIEF  AISTD   POINTS  FOR  APPELLEE. 


F.    H.    KALES, 
C.  A.  GREGORY, 


Counsel  for  Appellee. 


KI  r 


SUPREME  COURT  OF  ILLINOIS. 

THIRD  GRAND  DIVISION. 
OTTAWA,   APRIL  TERM.  A.  33.  1866. 


FRANKLIN  PARMELEE,\ 
DAVID  A.  GAGE, 
WALTER  S.  JOHNSON, 
Appellants. 


DANIEL  LAWRENCE, 

Appellee. 


Appeal  from  the  Superior  Court 

of  Chicago. 
vs. 


BRIEF  AND  POINTS  FOR  APPELLEE. 


STATEMENT  OF   THE   CASE. 

On  the  15th  of  September,  1856,  the  appellants  and  one  Lib- 
erty Bigelow,  who  were  then  partners  under  the  firm  name  of 
F.  Parmelee  &  Co.,  in  Chicago,  borrowed  from  Daniel  Lawrence, 
of  Medford,  Massachusetts,  the  sum  of  $50,000,  wherewith  to 
erect  the  buildings  known  as  Garrett  Block,  in  Chicago.  (See 
deposition  of  Samuel  Lawrence,  Int  5,  p.  98  Abstract : 
Boyington's  deposition,  p.  105  Abstract ;  Bigelow's  deposition, 
p.  103 ;  also  averments  in  the  answer  to  Lawrence's  cross-bill,  p. 
40,  as  to  application  for  a  loan ;  also  admissions  in  the  letters 
of  Bigelow  on  pp.  102,  103,  Abstract.) 

In  order  to  secure  to  Mr.  Lawrence  the  repayment  of  the 
money,  they  gave  him  an  absolute  deed,  purporting  to  convey 
to  him  and  his  heirs  the  property  in  fee,  with  an  absolute  cove- 
1 


2 

nant  of  warranty,  (for  deed  see  p.  26  of  Abstract) ;  and  took 
back  articles  of  agreement  of  like  date  for  the  reconveyance  of 
the  property,  at  the  end  of  five  years.  (For  articles  of  agreement 
see  p.  12  Abstract.)  The  articles  contained  a  covenant  by 
appellants  and  Bigelow  to  pay  Lawrence  $50,000  with  semi- 
annual interest,  at  the  rate  of  ten  per  cent  per  annum,  the  prin- 
cipal to  be  paid  in  five  equal  annual  instalments,  from  October 
1st,  1856.  And  Lawrence  therein  covenanted,  that  upon  receiv- 
ing such  payment,  he  would  reconvey  the  property  to  the  ap- 
pellants and  Bigelow.  Appellants  and  Bigelow  paid  interest 
down  to  April  1st,  1861,  (but  none  of  the  principal,)  and  from 
that  time  they  made  no  further  payment  till  long  after  filing 
their  bill.  (For  proof,  see  Samuel  Lawrence's  deposition,  p. 
102  Abstract,  answer  to  llth  interrogatory  ;  Bigelow's  deposi- 
tion, p.  108,  Abstract;  answer  to  4th  interrogatory,  etc.,  Par- 
ker's deposition,  p.  110  Abstract) 

On  August  4th,  1863,  Bigelow,  Gage  &  Parmelee,  filed  their 
bill  in  chancery,  against  Lawrence,  setting  up  the  articles  of 
agreement,  (but  suppressing  their  cotemporaneous  deed,)  and 
claimed  that  the  articles  constituted  a  bargain  and  sale  of  real 
estate  ;  that  the  relation  of  vendor  and  vendee  existed  between 
the  parties ;  that  Lawrence  covenanted  to  convey  to  them  the 
property  for  $50,000,  and  interest  at  ten  per  cent,  free  and  clear 
of  a\l  incumbrances ;  they  allege  readiness,  and  offer  to  pay  to 
Lawrence  the  full  amount  of  principal  and  interest  mentioned 
in  the  articles,  upon  Lawrence  conveying  to  them  the  land,  ac- 
cording to  his  covenant  in  the  articles ;  that  he  was  unable  to 
make  title  to  the  land,  and  never  had  the  fee  thereof ;  that  by 
the  terms  of  said  articles  the  whole  sum  of  $50,000  with  the 
interest  thereon,  excepting  what  they  had  paid,  was  due  from 
them  to  Lawrence ;  that  Lawrence  had  demanded  the  money 
of  them,  and  was  threatening,  in  case  they  did  not  pay,  to  eject 
them  by  suit  at  law,  unless  enjoined,  etc.,  and  that  by  reason  of 
their  covenants  in  the  articles,  they  would  be  unable  to  suc- 
cessfully defend  at  law.  The  bill  prayed  an  injunction  against 
Lawrence,  to  restrain  him  from  instituting  any  suit  for  the  re- 
covery of  the  money,  or  for  the  recovery  of  the  premises,  etc. 
The  bill  was  sworn  to  by  one  of  appellants.  The  injunction 
was  accordingly  issued,  and  served  on  Lawrence.  (For  original 


bill  of  complaint,  see  p.  1  Abstract ;  and  for  articles  see  p.  12 
Abstract) 

Lawrence  filed  his  answer.  (See  p.  15  Abstract.)  He  in- 
sisted : 

1st.  That  the  relation  of  borrower  and  lender  existed  between 
appellants  and  him,  and  denied  that  the  parties  bore  the  rela- 
tion of  vendor  and  vendee,  as  alleged  in  the  bill.  He  averred 
the  loaning  of  the  money  by  him  to  appellants,  and  the  making 
of  the  deed  in  fee,  etc.,  to  him  by  appellants,  and  the  giving 
back  of  the  articles,  and  that  this  was  a  mortgage  security., 
(For  averments  as  to  loan,  etc.,  see  bottom  p.  21  Abstract;  for 
deed,  see  p.  26  Abstract.) 

He  averred,  that  since  receiving  the  conveyance  in  fee  from 
them,  with  the  covenant  of  warranty,  etc.,  he  had  done  or  suf- 
fered no  act  or  thing  whereby  the  title  had  been  impaired  or 
incumbered. 

2nd.  He  also  claimed  that  appellants  were  estopped  by 
their  deed  from  questioning  the  title  which  they  had  conveyed 
to  him,  and  offered  to  convey  to  them  (upon  receiving  the 
money  and  interest,  at  ten  per  cent,  as  agreed  in  the  articles,)' 
just  such  title  as  they  conveyed  to  him.  (Abstract,  p.  15r 
et  seq.) 

Lawrence,  upon  filing  his  answer,  at  the  same  time  filed  his 
cross-bill  (see  p.  30  Abstract,)  against  appellants,  and  the  other- 
parties  therein,  averring  that  the  relation  of  borrower  and  lender 
existed  between  the  parties,  and  asking  a  foreclosure  of  the  mort- 
gage and  a  decree  for  the  payment  of  the  principal,  which  had 
become  due,  together  with  interest  remaining  unpaid,  at  the' 
rate  of  ten  per  cent,  as  had  been  agreed  by  said  articles,  and  as- 
had  thereby  been  charged  upon  the  land  by  way  of  security  for 
the  repayment  of  such  interest  and  principal. 

The  cross-bill  prayed,  generally,  such  relief  as  was  proper ; 
for  a  decree  for  payment  of  the  money,  and  in  default,  a  sale 
of  the  land,  etc.  (See  prayer,  pp.  38  and  39  of  Abstract)  The 
appellants  and  Bigelow  answered  the  cross-bill,  (see  p.  40  Ab- 
stract), and  by  their  answer  claimed  : 

1st  That  the  relation  of  vendor  and  vendee  of  the  land 
existed  between  the  parties,  as  they  had  affirmed  in  their 
original  bill. 

2nd.     That  by  reason  of  the  form  of  the  writings  ultimately 


signed  by  the  parties,  Lawrence  was  estopped  from  claiming 
that  the  transaction  was  a  loan  and  mortgage  and  from  denying 
that  it  was  an  agreement  to  sell  them  the  land.  (See  p.  41 
et  leq.  of  Abstract.) 

3rd.  They  further  set  up,  by  way  of  defense,  (see  p.  48 
el  seq.,)  that  if  the  court  should  be  of  opinion  that  the  relation  be- 
tween the  parties  was  that  of  borrower  and  lender,  then  the  loan 
was  upon  an  usurious  rate  of  interest,  and  specifically  claimed 
a  forfeiture  of  threefold  the  usurious  rate  reserved  ;  and  they 
here  for  the  first  time,  alleged  that  the  rate  of  interest  was  twelve 
per  cent,  and  not  ten  per  cent,  as  they  had  theretofore,  in  the 
original  bill  alleged  ;  and  that  the  entire  agreement  concerning  the 
interest  was  in  writing,  and  appeared  from  the  papers ;  and  for  the 
first  time  they  allege  that,  in  addition  to  the  agreement  in  the 
articles,  to  pay  ten  per  cent,  interest,  they  also  gave  personal 
security  to  Lawrence  in  the  shape  of  their  bond,  conditioned  to 
deliver  to  him,  on  Oct.  1st,  1857,  their  notes,  payable  in  six  and 
twelve  months,  for  such  sum  as  the  interest,  at  ten  per  cent 
per  annum,  should  amount  to,  on  all  money  remaining  unpaid 
on  said  Oct.  1st,  and  likewise,  on  each  successive  Oct.  1st,  until 
the  whole  sum  should  be  paid.  (See  p.  51  Abstract,  and  for 
bond  itself,  see  p.  62  Abstract) 

They  allege  that  they  paid  twelve  per  cent,  interest,  to  April 
1,  1861.  Lawrence  iiled  his  exceptions  to  this  answer,  which 
were  overruled,  and  thereupon  he  excepted  to  the  ruling  of  the 
court  (See  p.  Eecord.)  The  proof  was,  that  they  gave  such 
notes  up  to  and  inclusive  of  Oct.  1st,  1860,  after  which  time  they 
gave  no  further  notes,  and  that  they  paid  the  ten  per  cent  and  the 
two  per  cent  additional  up  to  April  1,  1861 ;  after  that  time  all 
parties,  as  it  appears,  ignored  and  abandoned  the  two  per  cent, 
arrangement  (See  Bigelow's  dep.,  p.  109  Abstract)  There  is 
no  evidence  of  any  notes  given  after  Oct.  1,1860.  (See  exhib- 
its Nos.  4  and  5,  p.  112  Abstract)  (For  proof  of  this  abandon- 
ment, see  p  102  and  103  Abstract,  letters  dated  Oct.  10,  1861, 
and  Nov.  25, 1861,  written  by  Bigelow,  and  the  fact  that  no  new 
notes  were  given  or  demanded,  and  no  more  interest  whatever 

o 

paid,  after  April,  1861,  and  no  demand  was  ever  made  by  Law- 
rence for  the  two  per  cent) 


SUPPLEMENTAL   BILL. 

On  the  24th  of  Sept.  1864,  Bigelow,  Gage  &  Parmelee  filed, 
in  this  cause,  their  supplemental  bill,  wherein  they  set  up  that, 
on  the  12th  day  of  August,  1864,  at  Boston,  Mass.,  Bigelow 
had  a  settlement  with  Lawrence,  of  the  moneys  due  Lawrence 
under  the  articles,  and  that  Bigelow  paid  Lawrence  $22,557,  in 
full  satisfaction  of  Bigelow's  share,  and  that  Lawrence  then  and 
there,  without  the  knowledge  or  consent  of  the  appellants, 
executed,  under  his  hand  and  seal,  and  delivered  to  Bigelow,  the 
following  instrument  (See  p.  76  Abstract.) 

Received,  Boston,  August  12th,  1864,  twenty-two  thousand  five  hundred 
fifty-seven  dollars,  of  Liberty  Bigelow,  in  full  payment  of  his  portion  of  all 
money  due  me  on  Articles  of  Agreement  between  myself,  him,  (said  B.)  F. 
Parmelee,  D.  A.  Gage  and  W.  S.  Johnson,  dated  September  15,  1856,  and 
recorded  in  the  recorder's  office  of  Cook  County,  Illinois,  October  17th,  same 
year,  in  book  171  of  Deeds,  page  71;  and  I  release  and  discharge  said  Bigelow, 
his  property  and  estate,  from  all  claims  on  account  of  the  same. 

If  the  property  mentioned  in  the  above  articles  has  to  be  sold  under  any 
order  of  the  Court  at  Chicago,  the  interest  of  said  Bigelow  in  it  is  to  be  pro- 
tected according  to  this  settlement.  Nothing  herein  contained  shall  in  anywise 
affect  my  rights  or  demand  against  said  Parmelee,  Gage  or  Johnson,  or  their 
interest  in  said  property. 

[U.  S.  Rsoenue  Stamp.]  DANIEL  LAWRENCE.     [Seal.] 

They  claimed  that,  since  their  covenants  in  the  articles  were 
joint  covenants,  therefore  this  agreement  and  receipt  to  Bigelow 
was  a  satisfaction,  in  law  and  in  fact,  of  all  the  moneys  due 
Lawrence.  They  prayed  the  relief  prayed  in  their  original  bill, 
and  further,  that  their  covenants  in  the  articles  be  decreed  to 
be  discharged,  and  that  they  might  be  decreed  discharged  from 
all  claims  of  Lawrence  for  money  upon  the  articles,  and  that 
Lawrence  reconvey,  etc.,  and  discharge  all  lien  of  record, 
etc.  (See  p.  76  Abstract,  for  prayer  for  answer.) 

The  answer  of  defendant  Lawrence  was  required  by  the  com- 
plainants without  waiving  his  oath.  Afterward,  on 'Dec.  3rd, 
1864,  Lawrence  filed  his  answer  (see  Abstract,  p.  84  et  seq.,)  to 
the  supplemental  bill,  under  his  oath,  and  denied  that  any 
such  settlement  was  made  as  alleged,  and  absolutely  denied  that 
the  seal  on  the  receipt  to  Bigelow  was  his  seal ;  or  that  he  in 
any  way  authorized  the  putting  on  of  a  seal,  and  declared  that 
the  document  was  without  seal  when  he  signed  it,  and  did  hot 
purport  in  any  way  to  have  a  seal.  He  also  set  forth  the  cir- 


6 

cumstances  accompanying  his  acceptance  of  the  money  from 
Bigelow,  and  the  signing  of  the  receipt  to  him,  which  showed 
that  Bigelow,  by  false  and  fraudulent  representations,  had  en- 
deavored to  induce  him  to  give  such  an  instrument  as  might,  as 
Bigelow  and  his  counsel  supposed,  work  a  release  of  all  the 
parties  against  his  (Lawrence's)  intention.  He  denied  that  the 
instrument  did  operate  to  release  appellants.  He  averred  that 
he  was  ignorant  of  the  rule  of  law  in  Illinois,  respecting  the 
operation  of  such  a  cjualified  discharge,  and  that  Bigelow  rep- 
resented to  him  that  it  would  not  discharge  his  partners,  or 
affect  his  rights  against  their  interest  in  the  land.  He  admitted 
the  receipt  of  $22,557  as  paid  by  Bigelow,  under  the  admission 
of  Bigelow  that  the  transaction  was  a  loan  and  mortgage,  and 
under  the  claim  of  Bigelow,  that  this  was  his  proportion  as  be- 
tween him  and  his  partners,  and  admitted  the  giving  to  Bigelow 
of  a  receipt,  the  same  as  the  copy  set  out  in  the  supplemental 
bill,  exclusive  of  the  seal.  (See  pp.  84 — 93  of  Abstract.) 

The  facts  relating  to  this  so-called  release,  as  they  appear 
from  the  sworn  answer  of  Lawrence,  and  from  the  testimony 
of  the  witnesses,  are,  that  about  the  first  part  of  August,  1864, 
Bigelow  sought  out  Lawrence  and  had  divers  interviews  with 
him  in  order  to  induce  Lawrence,  as  Bigelow  declared,  to  re- 
ceive from  him  (see  p.  121  Abstract,  McAllister's  testimony, 
corroborating  also  the  sworn  answer  of  Lawrence,  which  see, 
passim,  p.  40  et  seq.,  Abstract,)  such  portion  of  the  money 
borrowed  by  the  appellants  and  Bigelow,  together  with  his 
(Bigelow's)  share  of  the  interest  remaining  due,  as  justly  be- 
longed to  him  to  pay,  as  between  him  and  appellants  ;  but  to 
have  Lawrence  receive  the  money  without  prejudicing  or 
affecting  his  rights  or  demands  against  the  appellants,  and 
without  affecting  his  rights  against  their  interest  in  the  land 
held  as  security,  Bigelow  claiming  to  Lawrence  that  the  trans- 
action was  a  loan  and  mortgage,  and  that  his  share  to  be  paid 
as  between  himself  and  his  partners,  was  $22,557,  and  that 
Bigelow  then  offered  to  pay  the  money  to  Lawrence  without 
prejudice  to  the  rights  of  Lawrence  against  the  other  parties,  or 
their  interest  in  the  land,  if  Lawrence  would  receive  it,  and 
save  Bigelow  harmless  in  respect  of  the  residue,  and  protect 
his  interest  in  the  premises  accordingly,  in  case  the  court  should 
afterward  order  the  land  sold.  (See  McAllister's  testimony  on 


cross-examination,  p.  124,  et  seq.,  Abstract ;  also,  see  sworn 
answer  of  Lawrence,  p.  87  et  seq.,  Abstract.) 

That  Lawrence  expressed  his  willingness  to  accede  to  these 
proposals,  and  on  such  conditions  accepted  the  sum  of  $22,557 
from  Bigelow,  on  Aug.  12,  1864.  and  at  Bigelow's  request 
signed  an  instrument  which  Bigelow  then  and  there  represented 
to  Lawrence  that  he  could  sign  without  in  any  way  invali- 
dating his  claim  to  the  residue  of  the  money,  or  his  security 
upon  the  land.  (See  Lawrence's  sworn  answer,  p.  87  et  seq.) 

It  also  appears  from  the  proof,  that  the  so-called  release  was 
one  of  many  instruments  whicht  had  been  successively  drawn 
up  by  Bigelow  and  his  counsel,  between  August  1st  and  12th,  and 
in  the  absence  of  Lawrence ;  that  such  instruments  were  absolute 
technical  releases  with  seals,  and  purporting  in  the  body  thereof 
to  be  under  seal ;  each  in  turn  at  different  times  had  been  pre- 
sented to  Lawrence  by  Bigelow  to  sign  when  he  should  receive  the 
money  ;  that  Lawrence  declined  to  sign  any  of  them,  upon  the 
ground  that  they  did  not  express  the  agreement  between  him 
and  Bigelow  upon  which  the  money  was  to  be  accepted,  i.  e., 
that  his  (L.'s)  rights  as  against  the  other  parties  and  their 
interest  in  the  land  should  not  be  affected  by  the  settlement  with 
Bigelow.  (See  McAllister's  cross-examination,  p.  125 ;  10th 
cross-interrogatory  and  answer,  et  seq. ;  15th  cross-interrogatory, 
p.  125  ;  16th,  17th  and  18th  cross-interrogatories,  p.  126  ;  22nd 
cross-interrogatory,  p.  127  Abstract ;  Lawrence's  sworn  answer, 
p.  84,  et  seq.) 

It  appeared  that  the  so-called  release  had  a  yellow  seal 
(post-office  paper  cut  diamond  shape)  upon  it,  before  it  was 
signed  and  while  it  was  unsigned  ;  that  the  seal  was  pasted  to 
the  paper  and  then  handed  to  Bigelow ;  that  Bigelow  wrote 
upon  it  the  word  "seal."  (Abstract,  p.  122.) 

It  further  appeared  that  the  release  which  was  produced  in 
evidence,  had  a  yellow  seal  made  of  post-office  paper  cut  dia- 
mond shape,  and  bore  upon  it  the  letters  seal  in  the  hand- 
writing of  one  Chapman,  (see  Chapman's  deposition,  p.  141 
Abstract,  p.  143,  et  passim ;  see  deposition  of  appellant's  wit- 
ness, Phillips,  p.  120,  corroborating  Chapman,)  who,  as  scribe  for 
Bigelow,  wrote  the  instrument,  and  who,  after  Lawrence  signed 
it,  and  in  his  absence  and  without  his  consent  or  knowledge, 
and  at  the  request  of  Bigelow,  cut  out  the  identical  pr^rser1 


8 

which  at  the  trial  appeared  upon  the  release  produced  by  appel- 
lants, and  pasted  it  upon  the  release,  and  wrote  with  his  own 
hand  the  word  "  seal "  on  the  yellow  diamond,  and  identified 
the  seal  and  paper  produced  as  his  handwriting.  (Answer  to 
14th  interrogatory,  p.  143,  et passim;  see  also  examination  by 
the  Court,  p.  160  Abstract.) 

It  was  proved  that  the  so-called  release  was  signed  and  de- 
livered in  Boston,  Mass.,  and  the  money  paid  in  Boston,  and 
also  proved  that  the  rule  as  to  the  construction  of  such  qualified 
discharges  laid  down  in  the  case  of  Solly  v.  Forbes,  2  Brod.  and 
Bing.,  p.  36,  is  adopted  in  Massachusetts,  as  appears  from  the 
case  of  Wiggin  v.  Tudor,  23  Pick,  pages  434 — 445 ;  cases  intro- 
duced in  proof,  under  stipulation. 

The  case  was  heard  before  the  Hon.  John  M.  Wilson,  upon 
the  pleadings  and  proofs.  The  final  decree  was  rendered  on  the 
12th  of  January,  1866,  and  is  printed  at  length  in  the  Abstract, 
pages  162—171. 

The  Court  decreed  that  Lawrence  was  entitled  to  the  amount 
of  unpaid  principal  with  interest  on  the  same  at  six  per  cent, 
after  April  1st,  1861 ;  that  the  payment  of  all  the  interest  up 
to  that  time  was  a  voluntary  payment  by  appellants,  and  that 
they  could  not  recover  back  the  same,  nor  apply  the  same  in 
reduction  of  the  principal ;  ordered  payment  of  the  money,  and 
a  foreclosure  sale  in  default ;  ordering  that  Bigelow's  interest  in 
the  property  be  protected  in  case  of  sale.  The  Court  found 
that  the  so-called  release  was  only  an  agreement  on  the  part  of 
Lawrence  not  to  further  charge  Bigelow  ;  but  under  the  circum- 
stances did  not  operate  to  discharge  the  appellants. 

The  Court  protected  Johnson  in  accordance  with  the  request 
of  the  appellants  and  Bigelow  ;  it  appearing  that  Johnson  had 
sold  out  to  the  other  partners  and  they  had  agreed  to  indemnify 
him. 

The  original  complainants  took  an  appeal,  assigning  errors  as 
on  page  172,  et  seq.,  of  Abstract,  It  was  contended  below,  on 
the  part  of  Lawrence,  that  he  was  entitled  to  ten  percent,  inter- 
est from  April  1st,  1861,  on  the  principal ;  the  amount  Bigelow 
paid,  it  was  admitted,  might  be  treated  as  a  payment  on  account, 
this  being  most  favorable  to  appellants. 

The  appellee  complains  that  the  Court  erred  in  allowing  to 
the  appellants  a  reduction  of  interest  from  ten  to  six  per  cent., 


9 

for  that,  by  law,  upon  the  contract  he  was  entitled  to  ten  per 
cent,  the  rate  tendered  in  the  original  bill;  and  because  the 
fraud  and  oppression  practiced  by  appellants  in  bringing  the 
appellee  into  a  court  of  equity  upon  a  false  ground  of  complaint, 
entitled  them  to  no  abatement  from  the  contract  rate  of  ten  per 
cent,  by  reason  of  any  equitable  considerations. 

Judge  Wilson's  opinion  filed  in  the  case,  and  referred  to  in 
the  decree,  is  printed  at  the  end  of  this  brief,  as  it  presents  a 
comprehensive  summary  of  the  whole  case. 

The  principal  questions  that  arise  in  the  case,  are  : 

1st,  Whether  under  the  circumstances  of  this  case,  Lawrence 
is  a  mortgagee  or  a  vendor  of  the  land  ;  and,  in  either  case, 
whether  he  is  not  entitled  to  his  decree. 

2nd.  Whether  the  appellants  are  entitled  in  equity  to  recover 
back  the  usurious  interest  already  paid. 

3rd.  Whether  the  appellants  should  not  pay  interest  at  the 
rate  of  ten  per  cent,  per  annum  from  April  1,  1861. 

4th.  Whether,  in  equity,  the  so-called  release  of  Bigelow 
discharged  the  appellants. 

POINTS. 

I.  The  deed  of  appellants  of  September  15,  1856,  and  the 
articles  of  agreement  of  the  same  date  for  the  reconveyance  of 
the  land  to  appellants,  are  a  mortgage. 

The  appellants  and  appellee  met  upon  the  footing  of  bor- 
rower and  lender.  The  loan  was  actually  made.  The  appel- 
lants admitted,  down  to  the  time  they  filed  their  bill,  that  the 
transaction  was  a  loan  and  mortgage. 

Delahay  v.  McConnel,  4  Scam.  157. 

Coates  v.  Wood  worth,  13  111.  654. 

Miller  v.  Thomas,  14  111.  428. 

Smith  v.  Sackett,  15  111.  528. 

Davis  v.  Hopkins,  15  111.  519. 

Williams  v.  Bishop,  15  111.  554. 

Tillaon  v.  Moulton,  23  111.  648. 

Wyncoop  v.  Cowing,  21  111.  570. 

Shaver  v.  Woodward,  28  111.  277. 


10 

The  form  in  which  the  contract  in  this  case  was  reduced  to 
writing,  is  not  inconsistent  with  a  contract  of  loan  and  mort- 
gage ;  therefore  Lawrence  is  not  estopped  to  insist  that  such  was 
the  character  of  the  transaction. 

See  cases  last  above  cited. 

Hence  Lawrence,  being  a  mortgagee  of  the  land,  was 
entitled  to  a  decree  for  foreclosure. 

The  form  of  the  decree,  however,  in  this  case  is  not  inconsis- 
tent with  the  relation  of  vendor  and  vendee,  and  it  is  decided 
in  the  case  of  Smith  v.  Moore,  26  111.  393,  that  a  vendor  of  land 
is  for  some  purposes  to  be  treated  as  an  equitable  mortgagor. 
So  that,  even  if  the  appellants'  theory  of  the  case,  that  Law- 
rence is  a  vendor  of  the  land,  were  true,  still  he  would  be  entitled 
to  the  decree  for  a  sale  of  the  premises,  in  case  of  non-pay- 
ment by  the  vendees. 

II.  The  appellants  are  estopped  by  their  deed  of  Sept  15, 
1856,  to  allege  such  a  want  of  title  in  Lawrence  as  would  render 
him  unable  to  perform  his  covenant  to  sell  and  convey  them 
the  land  free  and  clear  of  incumbrances. 

Hence,  there  was  no  error  in  the  court  deciding  that,  under 
the  articles  of  agreement  of  Sept.  15, 1856,  Lawrence  was  not 
bound  to  convey  to  the  appellants  any  other  or  better  title  than 
he  derived  from  the  appellants ;  nor  was  there  any  error  in  the 
Court  deciding  that  since  Lawrence  was  a  mortgagee  of  the 
land,  it  was  a  sufficient  compliance  with  his  contract  for  him  to 
release  to  the  grantors  in  the  deed,  or  their  assigns,  such  title  as 
he  obtained  from  them,  with  covenants  against  his  own  acts 
only. 

The  appellants  contend  that  Lawrence  agreed  to  convey  to 
them  a  fee  simple  estate  in  all  the  land  free  from  incumbrances ; 
they  then  insist  that  they  had  only  an  estate  for  years  in  a  part 
of  the  land,  and  that  by  their  deed  they  conveyed  to  Lawrence 
only  such  estate  as  they  had.  It  is  only  on  such  a  construction 
of  their  deed  as  they  now  contend  for,  that  they  base  the  eighth 
and  ninth  assignment  of  errors. 

It  is  easy  to  demonstrate  that  the  deed  and  articles  of  agree- 
ment of  Sept.  15,  1856,  will  bear  no  such  construction  as  the 
appellants  now  insist  upon. 


11 

The  deed  of  appellants  purports  to  convey  the  fee  of  the 
land  to  Lawrence,  and  contains  a  covenant  of  warranty ;  it  does 
not  purport  to  convey  the  right,  title  and  interest  of  the 
grantors.  A  deed  should  be  construed  according  to  the  inten- 
tion of  the  parties  as  manifested  by  the  entire  instrument- 
Now  here  the  subject-matter  of  the  grant  is  the  land  itself,  and 
not  merely  such  title  as  the  grantors  had  therein.  The  words 
of  grant  are,  "  have  granted,"  etc.,  "  and  by  these  presents  do 
grant  bargain,  sell,  remise,  release,  convey,  alien  and  confirm, 
unto  said  party  of  the  second  part  and  to  his  heirs  and  assigns, 
forever,  all  the  following  described  lots,  pieces  or  parcels  of 
land,"  etc.;  and  the  habendum  is  "to  have  and  to  hold  the  said 
premises  above  bargained  and  described,  with  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever." 
Thus  by  the  habendum,  Lawrence  would  take  an  estate  in  fee. 
(4  Greenlf.  Cruise,  273,  sec.  73—75  ;  and  274,  sec.  84)  The 
appellant's  construction  of  the  deed  would  render  the  habendum 
repugnant  to  the  granting  clause.  But  every  deed,  if  possible, 
will  be  so  construed  as  that  all  parts  shall  operate,  and  be 
harmonious.  Neither  in  the  granting  clause,  nor  in  the  haben- 
dum, is  there  any  limitation  of  the  duration  of  the  estate,  hence 
the  estate  granted  is  a  fee  simple ;  it  is  in  contemplation  of 
law,  an  estate  forever. 

The  covenants  are  as  follows :  "And  the  said  parties  of  the 
first  part,  for  themselves,  their  heirs,  executors  and  administrators, 
do  covenant,  grant,  bargain  and  agree  to  and  with  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  that  the  said 
above  described  premises  are  free  and  clear  from  all  former  and 
other  grants,  bargains,  sales,  liens,  taxes,  assessments  and  incum- 
brances  of  what  kind  soever,  except  the  said  lease  and  articles 
of  agreement  above-mentioned,  and  the  above  bargained 
premises  in  the  quiet  and  peaceable  possession  of  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  against  all  and  every 
person  or  persons  lawfully  claiming  or  to  claim  the  whole  or 
any  part  thereof,  the  said  parties  of  the  first  part  shall  and  will 
warrant  and  forever  defend." 

Here  the  inquiry  may  be  made  as  to  what  the  word  premises 
refers  to  as  used  in  this  deed.  In  each  case  where  the  grantors 
use  the  word  they  themselves  define  the  premises  to  mean  the 
land — the  thing  granted — thus  in  the  habendum,  they  speak  of 


12 

the  "said  piemises  above  bargained-  and 'granted"  so  also  in  the 
covenants  they  speak  of  the  above  described  premises,  and  the 
above  bargained  premises.     Words'should  always  be  understood 
with  reference  to  the  subject-matter  and  the  connection  in  which 
they  are  used.     In  this  case  the  grantors  used  the  word  in  such 
a  connection  that  we  can  only  understand  by  it  the  land  itself; 
and  this  use  of  the  word  premises  is  most  common  in   deeds. 
2  Washburn  on  Real  Prop.  641,  and  cases  cited. 
Mills  v.  Catlin,  22  Yt.  99. 

If  we  refer  now  to  the  articles  of  agreement  executed  simul- 
taneously with  the  deed  in  question,  we  shall  find  that  our  con- 
struction of  this  deed  is  verified  by  the  recitals  therein.  In 
the  articles,  the  parties  who  are  the  grantors  in  the  deed,  recite 
that  the  land  therein  described  is  the  same  land  conveyed  by  them 
to  Lawrence,  "  by  deed  bearing  even  date  herewith  ;"  by  this  re- 
cital alone  they  are  estopped  to  say  that  they  did  not  convey 
the  land  itself  to  Lawrence. 

Douglass  v.  Scott,  5  Ohio,  104. 

2  Smith's  L.  C.  (Am.  Ed.)  536. 

Van  Rensselaer  v.  Kearney,  11  Howard,  324  et  seq. 

But  especially  as  to  the  force  to  be  given  to  the  words  in  the 
granting  clause;--  the  habendum,  and  the  covenants  in  this  deed, 
I  desire  to  cite  the  Court  to  the  case  of  Mills  v.  Catlin,  22  Yt. 
99,  as  fully  decisive  of  the  point  raised  by  the  appellants. 

The  subject-matter  of  the  grant  in  a  deed  may  be  considered 
in  two  aspects  : 

1.  As  respects  the  quantity  of  the  the  thing  granted,  i.  e., 
whether  1  or  100  acres,  etc. 

2.  As  respects  the  quality  of  the  estate  in  the  thing  granted 
i.  e.,  whether  an  estate  for  years,  or  a  fee  simple,  etc.  > 

Now  the  rule  of  law  is,  that  if  the  granting  clause  of  the 
deed  clearly  defines  a  certain  quantity  of  land,  or  a  certain 
quality  of  estate,  no  subsequent  language  of  the  deed  of 
doubtful  import  shall  operate  to  diminish  the  one  or  the  other. 

Mills  v.  Catlin,  22  Yt.  99. 
Ela  v.  Card,  2  N.  H.  175. 

And  the  rule  of  construction  is,  that  if  the  granting  clause, 
the  habendum,  and  the  covenants,  can  all  be  construed  so  as  to  be 


13 

coextensive  and  harmonious,  they  shall  be  so  construed  ;  that 
is  to  say,  no  such  construction  will  be  put  upon  a  deed  as  will 
render  any  of  its  parts  repugnant  to,  or  inconsistent  with  any 
other  part,  if  it  can  be  avoided. 

4  Greenleaf 's  Cruise,  275,  sec.  85. 

With  these  principles  in  mind,  the  construction  of  the  deed 
in  question  is  most  plain. 

A  deed  purporting  to  convey  the  whole  title,  though  without 
warranty,  estops  the  grantor  and  his  privies,  as  to  the  legal 
title. 

Carter  v.  Chandron,  21  Ala.  72. 

2  Smith's  L.  C.  (Am.  Ed.)  pp.  535  and  551. 

The  covenant  of  warranty  estops  the  appellants  to  set  up  a 
title  as  against  Lawrence. 

Van  Hensselaer  v.  Kearney,  11  Howard,  317,  322, 

citing  many  cases. 
Kellogg  v.   Wood,  4  Paige  Ch.  614. 
4  Greenleaf 's  Cruise,  378,  (side  page)  note  to  sec.  51. 

But  the  appellants  contend  that  the  clause  in  the  deed  which 
is  in  substance  as  follows,  to  wit :  "  The  said  above  described 
property  being  subject  in  this  grant  to  the  rents  and  conditions 
provided  for  and  imposed  in  and  by  a  certain  lease  made  by 
James  Crow  and  Thomas  Crow,  parties  of  the  first  part,  and 
Theodorus  Doty,  and  Daniel  Andrews,  parties  of  the  second 
part  therein,  and  bearing  date  the  tenth  day  of  October,  1853, 
recorded,  etc.  ;  and  also  to  the  payments  to  be  made  in  and  by 
certain  articles  of  agreement,  dated  Aug.  1,  1855,  between 
F.  T.  Flagler,  of  the  first  part,  and  F.  Parmelee,  of  the  second 
part  therein,  for  the  sale  by  said  Flagler  to  said  Parmelee,  of 
part  of  the  above  described  premises,  recorded,  etc.  ;  which 
said  lease  and  articles  of  agreement,  and  the  money  thereby- 
required  to  be  paid,  are  to  be  kept  performed  and  paid  by  the 
said  Liberty  Bigelow,  Walter  S.  Johnson,  David  A.  Gage,  and 
Franklin  Parmelee,  parties  of  the  first  part,  or  their  heirs  or 
administrators,"  makes  the  entire  grant  of  the  land,  and  makes 
the  covenants  of  the  deed  subject  to  the  Crow  lease  and  the 
Flagler  agreement 


14 

Upon  the  principles  and  authorities  already  stated,  this 
proposition  of  the  appellants  is  repelled. 

By  the  construction  insisted  upon  by  the  appellants,  this  clause 
is  an  attempt  to  limit  the  duration  of  the  estate  of  fee  simple,  al- 
ready, as  we  have  seen,  granted  by  the  granting  clause,  pointed 
by  the  habendum,  and  warranted  in  the  quiet  and  peaceable 
possession  of  the  grantee,  and  his  heirs  and  assigns  forever,  by 
the  covenant  And  cotemporaneously  the  grantors  were  to  be,  and 
did  become,  by  force  of  the  agreement,  of  even  date,  their 
own  assigns. 

The  fee  simple  is  the  entire  and  absolute  interest  and  prop- 
perty  in  the  thing  granted,  and  when  one  has  once  granted  it, 
he  can  make  no  further  disposition  of  it  He  may,  however, 
grant  it  upon  condition.  (1  Greenleaf's  Cruise,  55.)  But 
he  cannot,  in  a  deed,  grant  the  fee,  and  in  the  same  deed 
say  that  he  means  thereby  only  to  grant  such  estate  as  he  has, 
or  only  an  estate  for  years  ;  e.  g.,  thus  it  is  stated  in  Brook's 
Abr.,  that  if  a  feoffment  in  fee  be  made  to  W.  N.,  during  the 
life  of  J.  S.,  the  words  "  during  the  life  of  J.  S.,"  would  be 
rejected  because  they  were  contrary  to  the  fee. 

4  Greenleaf's  Cruise,  (side  page)  247,  sees.  25,  26. 

Even  if  it  were  doubtful  upon  this  deed  whether  the  grantors 
intended  to  grant  the  fee,  or  only  an  estate  for  years,  in  such  a 
case  the  rule  that  the  deed  must  be  taken  most  strongly  against 
the  grantors,  settles  the  doubt  in  favor  of  the  fee. 

4  Greenleaf's  Cruise,  245. 

2  Blk.  Com.  380. 

The  true  import  of  this  clause  is,  that  it  is  a  mere  recital  of 
the  condition  of  the  title,  to  give  point  to  the  covenant  of 
the  grantors,  inserted  in  this  very  clause,  to  pay  the  rents  and 
keep  the  terms  of  the  lease  and  the  Flagler  agreement,  and 
also  to  give  point  to  the  exception  in  the  covenant  against 
incumbrances. 

The  position  of  the  appellants,  in  this  respect,  is  not  even 
plausible.  The  clause  cannot  operate  as  an  exception,  or  res- 
ervation, or  limitation,  or  condition  ;  and  if  not  in  one  of  these 
ways,  then  only  as  recital,  as  we  have  said. 

An  exception  is  a  withdrawing  by  the  grantor  from  the  effect 


15 

of  the  grant  some  part  of  the  thing  itself  which  is  in  esse  and 
included  under  the  general  terms  of  the  grant,  as  one  acre  from 
a  certain  field,  etc.  4  Greenlf.  Cruise,  (side  page)  271,  sec.  66. 
An  exception  cannot  touch  the  quality  of  the  estate. 

A  reservation  is  something  made  to  the  grantor,  and  is  some- 
thing created  or  reserved,  issuing  or  coming  out  of  the  thing 
granted,  and  not  a  part  of  the  thing  itself,  e.  g.,  it  pertains  to 
rents,  easements,  privileges,  etc. ;  it  does  not  touch  the  quality 
of  the  estate  granted.  4  Greenlf.  Cruise,  chap.  25,  sec.  1. 

A  fee  may  be  granted  upon  a  condition ;  and  if  we  under- 
stand the  appellants  in  their  too  profound  analysis  of  this  branch 
of  the  case,  they  contend  that  this  clause  operates  as  a  condi- 
tion, to  wit,  the  estate  is  granted  on  the  condition  that  the 
grantors  or  the  grantee  shall  yield  up  the  premises  to  the  lessors 
in  the  Crow  lease  in  1874.  If  such  be  the  force  of  the  cove- 
nant of  the  grantors  in  this  clause  of  the  deed,  i.  e.,  that  they  will 
yield  up  the  premises  to  the  lessors  in  1874,  the  covenant 
would  be  void  as  repugnant  to  the  grant.  In  such  a  case  it 
would  be  impossible  to  give  effect  to  the  granting  words  which 
convey  an  estate  in  perpetuum,  and  at  the  same  time  to  give 
effect  to  the  covenant. 

The  covenant  must  yield  to  the  granting  clause,  or  the  grant- 
ing clause  to  the  covenant ;  one  is  clearly  repugnant  to  the 
other.  The  rule  is,  that  where  clauses  are  repugnant  and  in- 
compatible, the  earlier  prevails. 

Shep.  Touch.  88. 

2  Pars,  on  Comrafc-     5V  7,        J^-    '    £  '- 

"  A  condition  repugnant  to  the  nature  of  the  estate  to  which 
it  is  annexed,  is  void  in  its  creation."  (2  Greenlf.  Cruise,  sec.  5.) 
A  condition,  says  Cruise,  cannot  frustrate  the  grant  precedent 
(Ib.  5 ;  4  Kent's  Com.  sec.  131.) 

So,  where  a  lease  was  made  to  A,  B  &  C,  subject  to  this  ex- 
press condition  that  if  C  should  demand  any  profits  of  the  land, 
or  enter  into  the  same  during  the  life  of  A  or  B,  that  then  the 
estate  limited  to  C  should  cease  and  be  utterly  void.  It  was 
resolved  that  this  was  a  condition,  and  was  void,  being  repug- 
nant to  the  estate  limited. 

2  Greenlf.  Cruise,  5. 


The  only  other  questions  upon  the  deed,  arise  upon  the  cov- 
enants. The  position  of  the  appellants  that  the  covenants  are 
subject  to  the  conditions  and  terms  recited  in  the  clause  above 
referred  to,  is  untenable. 

Neither  the  Crow  lease  nor  the  Flagler  agreement  can  be  set 
up  by  the  appellants  as  incumbrances,  for  the  reason  that  the 
appellants,  (grantors  to  Lawrence,)  covenant,  both  in  their  deed 
and  their  articles  of  agreement,  to  perform  all  the  terms  and 
conditions  of  both  the  Flagler  agreement  and  the  Crow  lease. 
Watts  v.  Wettman,  2  N.  H.  458. 

Neither  is  it  the  law,  as  supposed  by  appellant's  counsel,  that 
a  qualified  covenant  against  incumbrances  is  a  limitation  of  a 
covenant  of  warranty.  The  exception  contained  in  the  cove- 
nant against  incumbrances,  does  not  extend  to  the  covenant  of 
warranty. 

Estabrook  v.  Smith,  6  Gray,  572. 
Sumner  v.  Williams,  8  Mass.  214 
Howell  v.  Richards,  11  East,  633. 

We  have  shown  even  if  Lawrence  is  to  be  regarded  as  a 
vendor  of  the  land,  that  his  covenants  are  rebutted  by  the  cov- 
enants of  the  appellants.  But  the  deed  and  the  Articles  are  to 
be  read  together  in  the  light  of  the  fact  that  the  transaction  was 
a  loan  of  money,  and  that  these  two  writings  were  intended  as 
a  contract  for  a  mortgage  security.  In  another  part  of  this 
brief  we  have  cited  the  authorities  to  show  what  are  the  rights 
of  the  parties  to  such  a  contract,  in  form  absolute,  but  intended 
as  a  security  merely.  And  the  law  attaches  to  this  relation  of 
mortgagor  and  mortgagee  certain  absolute  rights  and  duties  upon 
the  part  of  the  respective  parties ;  and  these  are :  the  right  of  the 
borrower,  upon  paying  the  debt  and  interest,  to  receive  back  his 
land  unimpaired  by  any  act  of  the  mortgagee,  and  the  duty  of 
the  mortgagee  to  reconvey  only  the  title  thereto  which  he 
received  as  security. 

2  Spence  Eq.,  p.  618. 

III.  By  the  common  law,  parties  were  allowed  to  receive 
such  rate  of  interest  as  was  agreed  upon  in  the  contract  of  loan  ; 
and  usury  statutes  are  but  limitations  or  restrictions  of  this 


17 

right  Such  statutes  are  generally  penal,  and  sometimes  pro- 
hibitory in  their  character.  In  some  instances  they  afford  a 
remedy  to  the  borrower  to  recover  back  usury  already  paid. 

A  statute  merely  penal,  only  operates  upon  the  remedy  ;  and 
must  have  been  in  force  when  the  suit  is  brought,  as  well  as 
when  the  contract  was  made.  A  statute  not  penal,  but  only  of 
a  prohibitory  character,  operates  upon  the  contract ;  and  where 
a  usury  statute,  for  its  violation,  does  not  declare  the  interest 
contract  void,  it  only  operates  upon  the  prohibited  excess 
reserved  beyond  the  rate  permitted  ;  and  if  in  force  at  the  time 
the  contract  is  made,  fixes  the  rights  of  the  parties,  whether 
afterwards  repealed  or  not. 

1.  The  interest  laws  of  Illinois  in  force  in  1845,  were  penal 
in  their  character,  and  not  prohibitory  statutes.  (Sec.  4.) 
They  likewise  gave  the  borrower  a  remedy  to  recover  back 
threefold  the  usury  paid,  by  action  or  bill,  within  two  years. 
(Sec.  6.)  The  Act  of  1849,  standing  alone,  was  prohibitory  in 
its  character,  and  not  penal.  This  Act  limited  the  contract  rate 
for  money  loaned  to  ten  per  cent. ;  but  while  the  penal  provi. 
sions  of  the  Act  of  1845  yet  remained  in  force,  unrepealed, 
both  Acts  were  construed  to  be  in  pari  materia,  leaving  the 
penalty  provided  in  the  4th  section  of  the  Act  of  1845,  still  in 
force.  (Kinsey  v.  Nisky,  23  111.  505.)  By  the  interest  Act  of 
1857,  all  of  the  penal  provisions  of  the  interest  laws  of  1845 
were  expressly  repealed ;  thereby  leaving  the  Act  of  1849 
alone  to  govern  the  rights  of  borrower  and  lender,  in  cases 
where  the  contract  was  made  between  1849  and  1857,  but  upon 
which  legal  remedies  were  sought  after  1857. 

The  case  now  presented  for  the  consideration  of  the  court,  is 
of  this  class.  The  contract  of  loan  was  made  in  1856.  The 
rate  reserved  by  contract,  was  twelve  per  cent  per  annum 
The  usury  was  paid  until  April  1st,  1861 ;  and  suit  was 
brought  in  August,  1863.  Had  not  the  Act  of  1857  repealed 
the  penalties  of  the  Act  of  1845,  the  rule  established  in  the 
case  of  Kinsley  v.  Nisley,  would  govern  this  case. 

The  penalties  of  the  latter  Act,  although  in  force  when  the 
contract  was  made,  created  no  vested  right  in  the  borrowers. 
These  penalties  were  under  the  control  of  the  legislature,  and 
2 


18 

their  repeal  before  suit  brought,  deprived  the  borrowers  of  all 
benefit  thereof  in  this  case. 

Seegar  v.  Seegar,  19  111.  121. 

Yeaton  v.  The  United  States,  5  Cranch.  281 — 3. 

Butler  v.  Palmer,  1  Hill,  330. 

The  question  of  usury  in  this  case,  is,  therefore,  to  be  gov- 
erned by  the  Act  of  1849,  standing  alone.  That  Act  is  not 
penal ;  but  where  there  is  a  contract,  it  is  prohibitory  as  to  the 
excess  thereby  reserved  beyond  ten  per  cent.  Where  the 
defense  of  usury  is  made  under  this  Act,  and  it  appears  that 
the  consideration  of  the  contract  was  money  loaned,  the  lender 
is  constructively  entitled  to  recover,  as  the  legal  rate  of  interest, 
the  rate  agreed  upon  by  the  parties,  not  exceeding  ten  per  cent, 
per  annum. 

Sees.  1  and  2,  Act  of  January  30,  1849. 

Matthias  v.  Cook,  31  111.  83. 

Smith  v.  Stoddard,  10  Mich.  148. 

Nichols  v.  Stewart,  21  111.  106. 

This  Act  enters  into  the  contract  to  prohibit  the  recovery  of 
the  excess,  when  the  defense  of  usury  is  insisted  upon  by  plea. 
The  Act  only  reaches  the  unexecuted  portion  of  the  contract ; 
it  gives  no  remedy  at  law  or  in  equity  to  the  borrower  to 
recover  back  usury  already  paid ;  nor  can  it  be  reclaimed  by 
way  of  set-off,  or  otherwise,  when  voluntarily  paid. 

Hadden  v.  Innes,  24  111.  381. 

TompTcins  v.  Hill,  28  111.  519. 

Carter  v.  Moses. — Opinions  of  this  court,  April 
term,  1864,  and  April  term,  1865. 

It  is  not  necessary  to  consider  in  this  case,  whether  the  appel- 
lants, under  the  sixth  section  of  the  interest  law  of  1845,  could 
recover  back  the  usury  already  paid,  by  action  or  bill,  because 
they  have  filed  no  bill  for  that  purpose ;  and  more  than  two 
years  had  elapsed  after  the  last  payment  of  usury,  before  this 
suit  was  instituted. 

2.  Under  the  statutes  of  1845  and  1849,  the  defense  of  usury 
was  a  mere  privilege,  and  waived,  if  not  specially  pleaded. 
(Smith  v.  Whitaker,  23  111.  367,  and  cases  there  cited ;  and 


19 

Hadden  v.  Innes,  24  111.  381.)  In  actions  upon  contracts  made 
since  the  statute  of  1857,  it  is  not  necessary  to  plead  specially 
the  defense  of  usury.  The  statute  of  1857  acts  directly  upon 
the  usurious  contract,  limiting  the  amount  of  the  recovery  to 
the  principal  sum  due,  without  regard  to  the  form  of  pleading. 
It  is  prohibitory  as  well  as  penal ;  but  it  has  no  bearing  in  this 
case  beyond  its  effect  in  expressly  repealing  the  penalties  enacted 
by  previous  statutes. 

Upon  these  principles,  had  Lawrence  been  plaintiff  in  a  suit 
at  law,  to  recover  damages  for  the  breach  of  the  contract  of  the 
appellees  in  not  repaying  the  money  loaned  to  them,  he  would 
have  been  entitled  not  only  to  retain  the  usury  voluntarily  paid  ; 
but  also  under  the  contract  to  have  recovered  interest  at  the 
rate  of  ten  per  cent  per  annum  from  April  1,  1861. 

Such  was  the  rule  understood  to  be  established  by  this  court 
in  the  case  of  Matthias  v.  Cook,  where  the  contract  was  made 
while  the  statutes  of  1845  and  1849  were  in  force,  but  upon 
which  suit  was  not  brought  until  after  the  penalties  of  the 
statute  of  1845  had  been  repealed  by  the  Act  of  1857  ;  and 
therefore  of  the  same  class  as  the  case  now  before  the  court 


IV.  In  equity,  the  statutes  against  usury  are  enforced,  but 
in  subordination  to  the  rule  that  he  who  seeks  equity  must 
offer  to  do  equity.  That  court  does  not  enforce  the  penalties 
unless  expressly  required  by  the  statute  to  do  so. 

1.  The  borrower  when  seeking  the  aid  of  a  court  of  equity, 
is  limited  to  two  modes  of  taking  advantage  of  usury  : 

1st,  To  offer  the  amount  actually  due,  with  so  much  of  the 
interest  agreed  upon  as  is  not  prohibited  by  the  statute ;  and  if 
all  the  interest  is  in  effect  declared  void  for  usury,  then  to  offer 
the  amount  due,  with  interest,  at  the  rate  fixed  by  law,  as  in 
cases  where  no  rate  is  agreed  upon  by  contract. 

Ferguson  v.  /Sutphen,  3  Gilm.  570. 

2nd,  To  insist  upon  the  penalties,  when  the  statute  permits 
this  to  be  done  in  equity. 

Int  Laws,  1845,  sec.  6,  chap.  54. 

In  regard  to  usurious  contracts  made  in  this  State,  and  not 
governed  exclusively  by  the  Act  of  1857,  it  is  necessary  in 


20 

equity  as  well  as  at  law,  that  the  question  of  usury  should  be 
raised  by  the  pleadings.  And  where  the  borrower  asks  the  aid 
of  a  court  of  equity  merely  to  enforce  the  statutory  penalties, 
and  without  offering  to  do  equity,  as  in  this  case,  that  court  will 
not  allow  him  the  benefit  of  the  usury  question.  It  will  treat 
the  question  as  not  raised,  and  thereby  leave  the  statute  to 
operate  upon  the  prohibited  excess  of  interest  reserved  by  the 
contract,  as  well  as  permit  the  lender  to  retain  the  benefit  of 
the  usury  already  voluntarily  paid  to  him ;  thus  leaving  the 
borrower  to  stand  as  he  would  in  a  court  of  law. 

2.     In  equity,   the   principles   before   stated  will,  a  fortiori, 
govern  in  a  case  where  the  borrower,  with  the  design  of  gaining 
an  undue  advantage  over  the  lender,  has  knowingly  attempted 
to  pervert  or  conceal  the  true  character  of  the  contract. 
Metropolitan  Bank  v.  Godfrey,  23  111.  604. 

The  appellants  conceived  and  exhibited  their  original  bill  in 
bad  faith.  In  that  bill,  filed  in  August,  1863,  and  sworn  to  by 
one  of  them,  they  admitted  the  existence  of  the  debt  to  Law- 
rence of  $50,000,  and  that  it  drew  interest  at  the  rate  of  ten 
per  cent,  and  that  they  had  paid  the  interest  to  April,  1861 ; 
but  they  concealed  from  the  court  that  the  consideration  of  the 
debt  was  money  loaned  to  them  by  Lawrence,  to  secure  the  re- 
payment of  which  they  had  given  him  an  absolute  deed,  with 
full  covenants  of  warranty,  and  taken  back  a  contract  for  recon- 
veyance ;  they  set  forth  only  the  contract  of  Lawrence  to  con- 
vey to  them  the  land  they  had  deeded  to  him ;  they  thus  color- 
ably  made  it  appear  that  Lawrence  was  their  vendor,  while  he 
was  in  fact  their  mortgagee  of  the  land  ;  they  then  alleged  that 
Lawrence  never  had  title,  and  could  not  convey  as  he  had 
agreed  to  do ;  that  as  soon  as  he  could  convey  to  them  the  title, 
free  and  clear,  they  were  ready  and  willing  to  pay  the  debt  and 
ten  per  cent  interest ;  they  further  alleged  that  they  had  ex- 
pended a  large  sum  for  improvements  on  the  land,  but  sup- 
pressed the  fact  that  this  was  done  with  the  money  loaned  them 
by  Lawrence ;  and  finally,  they  alleged  that  Lawrence  was 
about  to  eject  them  from  the  land  unless  they  paid  the  debt  and 
interest 

In  this  bill  the  appellants  made  no  claim  in  regard  to  usury, 
or  to  any  agreement  whereby  more  than  ten  per  cent  had 
orisrinally  been  reserved. 


21 

The  bill,  as  framed,  considered  by  the  light  of  the  evidence, 
was  an  adroit  attempt  to  enable  the  appellants  to  keep  the 
money  borrowed,  and  expended  on  the  land ;  and  also  to  pre- 
vent Lawrence  from  resorting  to  the  land  taken  by  him  as 
security  for  the  loan. 

Lawrence,  in  answering  the  bill,  stated  the  true  character  of 
the  contract  between  him  and  the  appellants,  and  claimed  to 
hold  the  land  only  as  a  mortgage  security  for  money  loaned ; 
and  insisted  upon  his  right  to  foreclose. 

To  avail  himself  of  the  full  benefit  of  the  defense  thus  set 
up,  he  also  filed  his  cross- bill  praying  foreclosure  for  the  amount 
of  the  debt  then  long  overdue,  and  asking  interest  at  the  rate 
of  ten  per  cent. 

The  appellants,  in  answer  to  the  cross-bill,  substantially 
confessed  that  Lawrence  was  only  a  mortgagee,  and  then,  for 
the  first  time,  claimed  that  the  loan  was  usurious,  in  that  the 
rate  originally  reserved  was  twelve  and  not  ten  per  cent  per 
annum ;  and  that  the  extra  two  per  cent  had  been  reserved  in 
a  separate  instrument  at  the  time  the  loan  was  made,  and  that 
they  had  paid  interest  accordingly,  to  the  first  day  of  April, 
1861.  The  appellants  then  set  forth  the  penal  provisions  (Sec. 
4)  of  statute  of  1845,  and  without  making  any  offer  to  do 
equity,  concluded  this  defense  by  insisting  that  if,  upon  an  ac- 
count taken,  anything  should  be  found  due  Lawrence,  "  then 
that  the  sums  paid  for  interest  under  said  corrupt  and  unlawful 
agreement,  and  all  amounts  forfeited  by  Lawrence  ought  to  be 
applied  in  payment  of  such  sum  so  found  due,  to  the  extent  of 
the  amount  so  paid  a,nd  forfeited  so  aforesaid."  Abstract  p.  54 

But  the  previous  repeal  of  section  4  of  the  statute,  1845,  put 
it  out  of  the  power  of  the  court  to  enforce  the  statutory  for- 
eiture  pleaded  and  claimed  by  the  appellants ;  and  the  ap- 
pellants had  no  standing  in  equity  to  crave  the  favor  of  the 
^ourt,  because, 

1st,  They  had  not  offered  to  do  equity  ; 

2nd.  They  had  been  guilty  of  bad  faith  toward  Lawrence. 

3.  This  case  is  distinguishable  from  the  cases  of  Heacock 
Swartout,  28  111.  291,  and  Cashman  v.  Stutphen,  decided 
April  term,  1864,  not  yet  reported,  in  which  the  court  al- 
>red  the  lender  but  six  per  cent. 


In  these  cases  it  appears  that  the  lender  acted  in  bad  faith, 
claiming  absolute  title  to  property  only  held  by  him  as  security, 
and  repudiating  the  existence  of  a  contract  of  loan  or  the  reserva- 
tion by  contract  of  any  rate  of  interest  whatever.  In  none  of  these 
cases  did  the  lender  rely  upon  his  contract,  and  when  the  relation 
of  mortgagor  and  mortgagee  was  established  by  the  borrower  so 
as  to  give  him  a  right  to  redeem,  the  court  directed  the  accounts 
to  be  taken  without  reference  to  the  existence  of  an  interest 
agreement ;  on  that  subject  taking  the  lender  at  his  word,  but 
yet  compelling  the  borrower,  as  a  condition  of  his  redeeming, 
to  do  equity  by  paying  interest  at  the  rate  fixed  where  there 
was  no  interest  agreement 

4.  This  case  as  governed  by  the  Act  of  1849,  is  distinguish- 
able from  those  cases  decided  in  this  court  which  are  governed 
exclusively  by  the  Act  of  1857,  because, 

1st  The  latter  Act  prohibits  the  lender  from  recovering 
any  portion  of  the  interest  reserved  in  case  of  usury;  and  hence 
he  can  get  no  allowance  of  interest  thereunder,  except  when  the 
borrower  is  asking  the  aid  of  a  court  of  equity,  and  on  that  ac- 
count is  compelled  to  do  equity  by  paying  the  rate  of  interest 
fixed  by  law  as  in  cases  where  there  is  no  contract  in  relation 
to  interest 

2nd.  Under  this  Act  it  is  not  necessary  to  plead  usury 
specially,  and  hence  none  of  the  consequences  of  failing  to 
plead,  or  of  improperly  pleading,  it  can  arise.  The  defense  is 
not  considered  waived,  however  it  may  be  made. 

The  principle  is,  that  where  the  whole  rate  reserved  is  declared 
void  for  usury,  there  is  no  interest  contract  whatever  between 
the  parties ;  but  where  the  rate  contracted  for  is  not  in  effect 
declared  void,  as  it  is  not  under  the  statute  of  1849,  the  prohibi- 
tion of  the  statute  merely  reaches  the  excess.  The  operation  of 
usury  statutes  upon  interest  contracts  is  not  permissive  to  enable 
parties  to  make  the  contract  In  the  absence  of  statutes  the 
rate  is  whatever  the  parties  agree  upon. 

5.  After  April  1,  1861,  all  the  parties  seem  to  have  aban- 
doned the  agreement  for  the  extra  two  per  cent  ;  and  not  after- 
wards to  have  acted  upon  it,  until  the  appellants  availed  them- 
selves thereof  to  plead  usury,  more  than  two  years  after  the  last 
interest,  legal  or  illegal,  had  been  paid  on  the  loan. 


23 

Interest  at  the  rate  of  ten  per  cent  was  specifically  charged 
on  the  land,  together  with  the  principal  sum  loaned  ;  the  extra 
two  per  cent  was  not  thus  secured.  The  two  parcels  of  interest 
were  treated  separately  and  distinctly  by  the  parties,  and  Law- 
rence has  never  claimed  anything  upon  the  extra  interest  agree- 
ment since  the  borrowers  ceased  to  voluntarily  pay  interest 
upon  it 

The  appellants  and  Bigelow  having  neglected  to  pay  any- 
thing upon  the  debt  or  interest  for  more  than  two  years,  filed 
their  bill,  complaining  that  Lawrence  was  about  to  proceed 
against  the  land  to  collect  his  debt,  or  threatened  to  eject  them 
by  legal  process  for  their  default,  and  enjoined  him  from  taking 
such  proceedings.  Their  position  as  complainants  was  not 
changed  because  they  were  made  defendants  in  the  cross-bill, 
which  was  technically  grounded  upon  the  defense  set  up  to  the 
original  bill.  A  foreclosure  was  the  legitimate  consequence  of 
the  maintenance  of  that  defense ;  and  to  avail  himself  of  the 
fruits  thereof,  Lawrence  filed  the  cross-bill.  In  the  meantime, 
Lawrence  was  enjoined  at  the  instance  of  the  appellants  from 
taking  any  other  proceeding  to  collect  his  debt,  except  that  open 
to  him  by  a  successful  defense  to  the  original  bill  and  the  con- 
sequent maintenance  of  a  right  of  foreclosure,  to  be  made  avail- 
able by  means  of  his  cross-bill. 

Under  the  circumstances  the  court  below  should  have  given 
the  appellee  interest  at  the  rate  of  ten  per  cent,  instead  of  only 
six  per  cent  from  April  1, 1861,  to  the  time  of  the  decree ;  and 
to  that  extent  the  decree  should  be  modified. 


V.  The  instrument  pleaded  as  a  release  does  not  operate,  in 
equity,  to  discharge  the  appellants  from  paying  their  share  of 
the  debt  due  Lawrence. 

1.  A  court  of  equity  will  not  construe  an  instrument  as  a 
release,  merely  because  the  word  release  is  used  in  it ;  but 
where  it  is  evident,  from  the  language  of  the  instrument,  that 
it  was  not  intended  to  operate  as  a  technical  release,  it  will  be 
construed  as  only  an  agreement  not  to  charge  the  person  to 


24 

whom  it  is  given,  and  will  not  be  permitted  to  have  the  effect 
of  a  technical  release. 

1  Parsons  on  Cont.  28. 

Kirby  v.  Taylor,  6  Johns.  Oh.  242. 

Claggett  v.  Salmon,  5  Gill  and  Johns,  351. 

This  is  also  the  modern  rule  at  law,  especially  where  it  can 
be  gathered  from  the  pleadings  that  the  releasor  does  not  seek 
satisfaction  from  the  party  discharged.  The  principle  is,  that 
the  reservations  contained  in  the  instrument  in  question,  save 
the  rights  of  the  appellants  to  go  against  Bigelow  for  contribu- 
tion in  case  they  are  compelled  to  pay  more  than  their 
share. 

Sotty  v.  Forbes,  2  Brod.  and  Bing.  36—46. 

Willis  v.  DeCastro,  93  E.  C.  L.  215. 

North  v.  Wakefield,  66  E.  C.  L.  536. 

Wiggin  v.  Tudor,  23  Pick  444. 

Lysaght  v.  Phillips,  5  Duer,  116. 

1  Pars,  on  Cont,  pp.  28—29. 


The  so-called  release  in  question,  is  not  proven  by  the  appel- 
lants to  have  been  sealed  with  the  knowledge  or  consent  of 
Lawrence. 

As  to  the  question  of  fact  whether  the  so-called  release  was 
sealed  with  the  knowledge  or  consent  of  Lawrence,  the  following 
considerations  will  govern : 

(1.)  The  appellants  propound  the  release  in  their  supple- 
mental bill,  and  allege  in  legal  effect  that  it  was  sealed  with  the 
knowledge  and  consent  of  Lawrence ;  and  they  ask  Lawrence 
to  answer  this  allegation  under  oath. 

(2.)  The  burden  of  proof  to  make  out  the  allegation  in  regard 
to  the  seal,  is  on  the  appellants — and  herein 

(a.)  The  answer  of  the  defendant,  called  for  on  his  oath 
emphatically  and  explicitly  denies  that  the  instrument  was 
sealed  with  the  knowledge  or  consent  of  Lawrence.  This  answer 
required  the  testimony  of  two  witnesses  to  overcome  it. 


25 

To  overcome  the  answer,  the  appellants  examined  Phillips 
and  McAllister;  both  swearing  to  the  presence  of  a  seal 
before  the  execution.  It  may  be  admitted  that  at  this  point, 
the  legal  preponderance  of  testimony  was  with  the  com- 
plainants. 

But  here  the  defendant  introduced  Chapman,  whose  testimony 
fully  sustained  the  answer — he  swearing  positively  to  the 
putting  on  of  the  present  seal,  at  Bigelow's  request,  after  the 
so-called  release  was  signed  and  delivered,  and  without  the 
knowledge  or  consent  of  Lawrence. 

(3.)  Then  bearing  in  mind  that  the  burden  of  proof  is  upon 
the  appellants  to  show  when  the  seal  was  put  on,  we  find 
that  the  testimony  is  equally  balanced  as  to  whether  it  was  put 
on  before  Lawrence  signed,  or  afterwards,  without  his  know- 
ledge. If  this  is  so,  the  defendant  Lawrence  must  prevail  — 

even  supposing  the  witnesses  to  be  in  direct  conflict :  but 

i 

(4.)  Phillips  sustains  Chapman,  and  shows  McAllister  to  be 
mistaken  in  a  very  important  particular :  McAllister  swears  that 
Bigelow  in  his  presence  wrote  the  word  "  seal,"  on  the  seal 
which  McAllister  saw  on  the  instrument  prior  to  its  execution. 
Now  Chapman  swears  to  a  distinct  recollection  of  putting  on 
the  seal  which  is  now  on  the  instrument,  after  it  had  been  signed 
by  Lawrence,  and  also  of  writing  the  word  "  seal  "  on  the  same 
as  it  now  appears ;  he  also  swears  that  the  word  seal  is  in  his 
(Chapman's)  handwriting. 

In  this  matter,  Phillips  swears  that  he  knows  Chapman's 
handwriting,  and  that  the  word  "smZ,"  now  upon  the  instru- 
ment, resembles  Chapman's  handwriting;  and  it  is  to  be_ noted 
that  McAllister  does  not  himself  identify  the  present  seal  as  the 
one  he  saw  on  the  instrument  prior  to  its  execution,  nor  does 
any  witness  testify  that  the  handwriting  on  the  seal  produced 
looks  like  Bigelow's,  and  yet  if  it  were  Bigelow's  it  would  have 
been  easy  to  prove  it ;  and  McAllister,  Bigelow's  counsel  and 
attorney,  who  testified  on  other  points,  would  not  have  failed  to 
identify  this  writing  as  the  handwriting  of  Bigelow,  if  such 
had  been  the  fact ;  and  Phillips  could  have  spoken  to  the 
same  point,  if  such  had  been  the  fact ;  while  Chapman  swears 
distinctly  that  it  is  not  Bigelow's  handwriting. 


26 

Hence,  it  must  be  concluded — 

1st,  That  McAllister  was  mistaken  about  the  seal  being  on 
prior  to  the  execution,  or 

2nd,  That  if  all  three  witnesses  remember  correctly,  it  must 
be  true  that  the  seal  which  McAllister  saw,  was  not  the  one  now 
on  the  instrument.  If  this  hypothesis  be  true,  it  is  manifest 
that  the  present  seal  was  put  on  at  some  time  subsequent  to  the 
time  McAllister  saw  the  instrument  with  a  seal  upon  it. 

The  material  question  then  is,  when  ?  and  the  burden  is  on 
the  appellants ;  but  on  this  question  there  is  no  evidence  ex- 
cept that  of  Chapman,  the  appellants'  evidence  all  relating  to 
the  first  seal. 

(5.)  The  matters  of  fraud  on  Bigelow's  part  disclosed  in  the 
answer  of  Lawrence,  help  to  strengthen  the  view  that  Bigelow, 
who  had  the  possession  of  the  release  after  McAllister  first  saw 
a  seal  on  it,  removed  the  seal  before  Lawrence  signed  the  re- 
lease, and  then  got  Chapman  to  put  on  the  present  seal. 

Hence,  the  appellants  have  failed  to  show  the  seal  in 
Chapman's  handwriting,  to  have  been  on  the  instrument  before 
execution. 

A  release  of  one  joint  debtor  in  order  to  discharge  all,  where 
less  than  the  amount  due  is  paid,  must  be  a  technical  release 
under  seal. 

Stewart  v.  Eden,  2  Caines'  Eep.  121. 

De  Zeng  v.  Bailey,  9  Wend.  336. 

Shaw  v.  Pratt,  22  Pick.  305. 

1  Parsons  on  Cont  162. 

\ 

A  receipt  in  full  to  one  joint  debtor,  on  payment  of  his  half, 
is  no  Release  of  the  other  debtor. 

Rowley  v.  Stoddard,  7  Johns,  207. 
McAllester  v.  Sprague,  34  Me.  296. 

VI.  There  was  no  error  in  the  refusal  of  the  Court  to  dis- 
miss the  supplemental  bill  of  the  appellants,  after  the  answer 
and  replication  were  filed. 

1.  The  appellee  had  the  right  to  have  the  validity  and  effect 
of  the  release  determined ;  and  to  interpose  his  defense  to  it,  if 


27 

he  had  any.  He  could  only  do  this  by  answer,  and  hence  the 
supplemental  bill  was  the  only  proper  mode  of  bringing  the 
instrument  before  the  Court. 

Story's  Equity  Pleadings,  sec.  332, 
and  authorities  there  cited. 

2.  To  have  entitled  the  appellants  to  dismiss  their  supple- 
mental bill,  they  should  also  have  offered  to  waive  all  benefit  of 
the  instrument  set  up  as  a  release,  except  as  a  mere  receipt  for 
money  paid. 

3.  The   appellants  were  not  injured  by  the  refusal  of  the 
Court  to  dismiss  the  supplemental  bill ;  they  were  not  thereby 
compelled  to  maintain  the  issues  made  therein,  and  if  they  chose 
to  do  so,  it  was  voluntary. 

4.  The  supplemental  bill,  once  filed  by  permission   of  the 
Court,  is  under  its  control  and  discretion. 

VII.  There  was  no  error  in  treating  the  sworn  answer  of 
Lawrence  to  the  supplemental  bill  as  evidence,  so  far  as  re- 
sponsive. 

1.  The  complainants  therein  had  the  right  to  a  discovery 
from  Lawrence  of  the  supplemental  matter  therein  alleged ;  and 
not  having  therein  expressly  waived  the  oath  of  Lawrence,  he 
was  bound  to  treat  the  bill  as  requiring  him  to  answer  its  alle- 
gations under  oath.  The  statute  requires  that  "  every  answer 
shall  be  verified  by  an  oath  or  affirmation,"  etc. 

'   Scates'  Comp.,  p.  141,  sec.  20. 
Story's  Equity  Pleadings,  sec.  874. 

The  original  bill  of  complaint  waived  the  oath  of  Lawrence 
only  "as  to  the  statements  and  charges  herein  (i.  e.  therein) 
contained."  (See  p.  9  Abstract) 

The  oath  was  properly  taken,  and  certified  before  a  proper 
officer,  and  no  objection  was  taken  to  the  form  thereof  before 
the  hearing. 

Act  of  Feb.  21, 1861,  (Myers'  Ed.  Laws 
of  1861,  p.  175.) 


28 

Formal  exceptions  to  evidence  should  be  taken  before  the 
hearing. 

Swift  v.  Castle,  23  111.  214. 

2.     The  rule  in  such  case  is,  that  the  answer  is  to  be  treated 
as  evidence,  so  far  as  responsive. 

Stouffer  v.  Machen,  16  111.  554. 
Myers  v.  Kinzie,  26  111.  37. 

R  H.  KALES, 
C.  A.  GREGORY, 

Counsel  for  Appellee. 


DECISION  OF  JUDGE  WILSON. 

This  case  involves  the  decision  of  equities  between  the  par- 
ties, growing  out  of  various  complicated  transactions  set  forth 
in  an  original  bill  filed  by  Bigelow,  Gage  and  Parmelee  vs. 
Lawrence,  Aug.  4,  A.  D.  1863,  and  answer  of  Lawrence  ;  cross- 
bill by  Lawrence  vs.  complainants  in  original  bill,  and  Walter 
S.  Johnson,  filed  Oct  6,  A.  D.  1863,  and  answers  of  all  the  de- 
fendants ;  supplemental  bill  by  Bigelow.  Gage  and  Parmelee, 
filed  24th  of  September,  A.  D.  1864,  vs.  Lawrence,  and  answer 
thereto. 

To  unriddle,  so  far  as  may  be,  the  complications  involved  in 
the  case,  I  shall  adopt  a  historical  statement  of  the  facts  as  dis- 
closed by  the  proof  and  exhibits. 

It  appears  from  the  evidence,  that  in  1856  the  original  com- 
plainants and  Johnson  were  desirous  of  obtaining  a  loan,  for 
the  purpose  of  building  a  block  upon  the  lots  described  in  arti- 
cles of  agreement  between  the  parties,  dated  September  15, 1856, 
and  also  in  deed  of  same  date,  from  Bigelow,  Gage,  Parmelee, 
Johnson  and  wives,  to  Lawrence.  That  negotiations  in  behalf 
of  the  complainants  in  the  original  bill  were  had  with  Lawrence, 
and  resulted  in  a  loan  by  Lawrence  to  complainants  of  $50,000. 
To  secure  the  payment  of  the  money  loaned,  instead  of  giving 
a  mortgage  upon  the  property,  Bigelow,  Gege,  Parmelee  and 
Johnson,  conveyed  certain  real  estate  to  Lawrence,  and  he,  by 
an  agreement  of  the  same  date,  agreed  to  re-convey  upon  the 
payment  of  the  principal  sum  loaned,  and  interest,  as  specified 
in  the  agreement,  and  a  bond  of  even  date,  as  I  construe  the 
agreement  of  the  parties,  taking  all  the  writings  together. 
These  instruments,  taken  together,  constitute  the  agreement  be- 
tween the  parties,  and  are  to  be  construed  together  to  ascertain 
the  intention  of  the  parties.  The  counsel  for  the  complainants 
contend  that  Lawrence,  by  his  covenant  to  convey,  is  bound  to 
give  them  a  better  title  than  they  gave  to  him.  The  covenant 
in  the  agreement  is  in  these  words  :  "  The  party  of  the  first  part 
hereby  covenants  and  agrees  to  sell,  and  by  a  good  and  sufficient  deed, 
to  convey  and  assure  to  the  parties  of  the  second  part,  free  and  clear 
of  all  incumbrances,  all  those  pieces  and  parcels  of  land"  etc.  Upon 
such  a  covenant,  standing  alone,  the  covenantor  would  doubt- 
less be  bound  to  give  a  warrantee  deed.  But  by  a  deed  of  the 


30 

complainants,  of  the  same  date,  conveying  the  same  land  to 
Lawrence  as  security,  it  is  provided  that  the  grant  in  that  deed 
is  subject  to  the  rents  and  conditions  "provided  for  and  imposed 
in  a  certain  lease  made  by  James  Crow  and  Thomas  Crow," 
dated  Oct.  10,  1868,  and  to  continue  until  the  first  day  of  May, 
1874.  The  last  payment,  under  the  agreement,  was  to  be  made 
in  October,  1861,  more  than  twelve  years  before  the  expiration  of 
the  lease,  and  there  was  no  right  of  purchase,  under  the  lease, 
until  its  expiration  in  1874  And,  by  the  agreement,  the  com- 
plainants were  to  have  the  possession  of  the  premises,  so  far  as 
related  to  Lawrence — rent  free,  and  to  pay  all  taxes  and  assess- 
ments on  the  premises,  and  keep  them  insured  for  Lawrence's 
benefit  until  the  last  payment  was  due.  This  lease  had  been 
assigned  to  Parmelee,  and  was  held  by  him  for  the  use  of  Parmelee 
&  Co.  By.  its  very  terms,  the  legal  title  could  not  be  obtained, 
even  by  Parmelee  &  Co. ,  until  more  tb  an  twelve  years  after  the  last 
payment  became  due,  and  they  could  by  their  own  act,  or  want 
of  action,  prevent  Lawrence  from  keeping  his  covenant,  as  they 
now  construe  it 

Said  deed  to  Lawrence  conveys  what  purports  to  be  the  legal 
title  to  the  same  land,  subject  to  the  rents  and  conditions  of  the 
Crow  lease ;  and  the  grantors  covenant,  that  the  premises  are 
free  and  clear  of  all  former  and  other  grants,  bargains,  sales 
liens,  taxes  and  incumbrances  of  what  kind  soever,  except  the 
Crow  lease  and  certain  articles  of  agreement,  and,  in  addition 
to  this,  there  is  a  covenant  of  quiet  enjoyment,  without  condi- 
tion or  exception,  by  which  they  covenant  for  quiet  and  peace- 
able possession  to  Lawrence  and  his  heirs  and  assigns,  and  that 
they  will  warrant  and  defend  the  premises  against  all  and  every 
person  lawfully  claiming  or  to  claim  the  whole  or  any  part 
thereof. 

The  grant  is  of  the  lots  of  land  to  the  grantee,  his  heirs  and 
assigns,  for  ever — a  fee-simple  estate,  not  the  interest  of  the 
grantors  in  the  lots.  In  the  habendum  clause  the  lots  are  re- 
ferred to  as  the  premises.  Eegarding  the  deed  and  articles  of 
agreement  as  merely  intended  to  secure  a  loan  of  money,  they 
constitute  a  mortgage.  The  nature  of  the  transaction,  as  ev- 
idenced by  the  instruments,  favors  this  construction ;  but  the 
proof  on  this  point  is  conclusive.  It  was  not  a  transaction 
between  vendor  and  purchaser,  except  in  form,  but  a  contract 


31 

between  borrower  and  lender,  and  in  such  cases  it  is  immate- 
rial in  what  form  these  papers  are  executed — whether  by  a 
mortgage  with  a  defeasance,  or  by  a  simple  deed  of  conveyance, 
and  an  agreement  to  re-convey  by  another  instrument,  as  in  this 
case.  This  doctrine  is  too  familiar  to  require  the  citation  of  au- 
thorities. In  the  present  case  it  is  apparent  that  all  that  was 
intended  by  the  deed  and  agreement,  was  to  secure  the  loan 
and  enable  the  complainants  to  obtain  a  re-conveyance  of  the 
property  and  estate,  granted  upon  the  payment  of  money.  The 
assumption  that  Lawrence  was,  bjr  the  agreement,  to  re-convey 
a  greater  estate  than  the  deed  conveyed  to  him,  would  require 
much  stronger  and  more  emphatic  language  than  the  agreement 
contains,  to  support  it ;  and  no  one,  I  apprehend,  construing  the 
instruments  together,  would  arrive  at  such  a  conclusion.  In 
the  first  place,  as  the  complainants  contend,  Lawrence  agreed 
to  convey  to  them  a  fee-simple  estate,  free  from  incumbrances, 
to  a  portion  of  the  property  to  which  they  had  but  an  estate  for 
years,  when  they  conveyed  to  him ;  and,  secondly,  they  insist 
that  they  conveyed  only  the  estate  they  had.  The  terms  of  the 
deed  will  admit  of  no  such  construction.  The  complainants' 
deed,  in  the  granting  clause,  as  before  stated,  conveys  the  land 
in  fee-simple,  and  the  covenant  for  quiet  enjoyment  applies  to 
all  the  lands  and  every  part  of  them,  and  recognizes  a  fee- 
simple  estate.  I  see  no  difficulty  in  giving  effect  to  the  condi- 
tion as  it  is  called.  The  words  are,  "  the  said  above  described 
property  being  subject  in  this  grant  to  the  rents  and  conditions 
provided  for  in  a  certain  lease,"  etc.  It  is  then  provided  that 
the  rents  and  conditions  shall  be  paid  and  performed  by  the 
complainants  in  the  original  bill.  The  object  of  the  statement 
was  to  recite  the  condition  of  the  property,  in  order  to  intro- 
duce the  covenants  for  paying  the  rents  and  moneys  due  upon 
the  Crow  lease  and  the  Flagler  contract,  and  has  no  necessary 
connection  with  the  other  portions  of  the  deed,  describing  the 
estate  conveyed.  In  this  respect  the  recital  is  important,  as  a 
proper  introduction  to  the  covenants  of  complainants  to  pay 
rent,  etc.,  and  as  giving  to  Lawrence  information  in  relation  to 
their  title. 

But  for  the  words  "  subject  in  this  grant"  it  would  be  impos- 
sible to  make  even  a  plausible  argument  to  sustain  the  position 
of  the  complainants.  But  a  court  should,  if  possible,  give  effect 


32 

to  every  part  of  an  instrument,  and  not  be  astute  to  find  repug- 
nant and  inconsistent  provisions  ;  and  should  especially  avoid 
declaring  any  portion  of  an  instrument  void. 

It  is  clear,  if  the  recital  or  condition  in  relation  to  the  Crow 
leases  is  to  receive  the  construction  contended  for  by  the  com- 
plainants, that  it  must  be  regarded  as  void,  being,  on  their  con- 
struction, repugnant  to  the  clause  denning  the  estate  granted. 
The  complainants  grant  an  estate  in  fee  simple  to  the  whole  of 
the  property,  and  covenant  for  the  quiet  enjoyment  of  the 
grantee  and  his  heirs  and  assigns,  and  in  the  same  deed,  as  they 
will  have  it,  insist  that  they  only  intend  to  convey  an  estate 
for  years.  It  would  be  difficult  to  imagine  a  more  palpable 
repugnancy,  unless  they  contended  that  the  grant  in  fee  simple, 
with  the  recital  or  condition,  conveyed  no  estate  or  title  what- 
ever. (Baldwin's  case,  2  Coke,  p.  23 ;  3  Pickering,  pp.  272-7  ; 
3  Gushing,  p  419  ;  15  Pickering,  p.  434.) 

Even  in  this  aspect  of  the  case,  there  can  be  no  pretense  for 
contending  that  Lawrence  is  bound  to  give  to  the  complainants 
any  other  title  than  he  received.  If  he  gave  a  deed  in  fee 
simple  in  form,  with  covenants  against  incumbrances,  the  com- 
plainant would  be  estopped  to  deny  that  he  had  such  a  title,  or 
that  they  acquired  it  by  virtue  of  his  deed,  his  only  title  being 
under  their  deed  in  fee  simple.  (2  1ST.  H.,  pp.  458-60 ;  UN. 
K,  p.  28.) 

But  these  instruments  constituting  a  mortgage,  the  Court  can 
only  regard  it  as  such.  "  Once  a  mortgage  always  a  mortgage," 
is  a  familiar  maxim.  As  such,  in  equity,  upon  the  payment 
of  the  money  by  the  mortgagors,  they  are  only  entitled  to  a 
release  from  the  mortgagee  of  all  the  interest  he  acquired  in 
the  premises  from  them,  when  the  mortgagors,  as  in  this  case, 
retain  the  possession  and  use  of  the  premises.  (2  Spence  Bq., 
p.  618.) 

The  claim  in  the  original  bill,  for  a  deed  in  fee  simple,  and 
against  incumbrances,  and  that  defendant  be  enjoined  till  he 
obtains  title  in  himself  to  justify  such  a  deed,  would  result,  as 
shown  by  the  bill,  in  a  perpetual  inj  unction,  and  cancel  forever 
a  just  debt  of  over  $40,000  owed  by  the  complainants  to  the 
defendants  and  this  without  default  on  the  part  of  the  defend- 
ant The  very  defects  on  which  their  claim  is  predicted,  existed 
in  the  title  of  the  complainants  at  the  time  they  conveyed  to 


33 

the  defendant  what  purported  to  be  a  fee  simple  estate  in  the 
land.  The  agreements  by  which  a  fee-simple  estate  could  be 
obtained,  being  in  possession  of  and  under  the  sole  control  of 
the  complainants,  they  would  be  enabled  to  retain  possession  of 
the  mortgaged  premises  without  paying  the  mortgage  debt, 
and,  as  against  the  defendant,  obtain  a  perfect  title  to  the  land 
conveyed  by  them  to  him  in  fee  simple.  I  apprehend  it  will 
take  several  centuries  in  this  progressive  era,  before  a  precedent 
will  be  found  for  such  a  decree.  Nor  will  a  court  of  equity 
decree  a  specific  performance,  as  between  parties,  when,  by  a 
literal  compliance  with  the  stipulations  of  the  parties,  the  party 
against  whom  the  decree  is  sought  could  recover  back  by  suit 
whatever  could  be  obtained  by  the  execution  of  such  decree. 
To  do  so  would  needlessly  multiply  suits  and  encourage  cir- 
cuity  of  action. 

The  original  bill  is  in  the  nature  of  a  bill  for  specific  per- 
formance, or,  as  the  case  now  stands,  to  avoid  specific  perform- 
ance by  an  indefinite  postponement  of  relief.  Upon  the  filing 
of  the  cross-bill  by  Lawrence,  the  complainants  set  up  usury  in 
the  answer,  and  ask  the  enforcement  of  the  penalties  imposed 
by  the  interest  act  of  1845.  They  allege,  and  the  proofs 
show,  that  a  large  amount  of  interest  was  paid  to  Lawrence, 
at  the  rate  of  12  per  cent  per  annum.  The  last  payment  of 
interest  was  in  April,  1861,  as  alleged  and  shown  by  proofs. 
Though  the  question  of  usury  is  raised  by  the  answer  to  the  cross, 
bill,  it  is  in  the  nature  of  an  amendment  to  the  original  bill, 
and  a  substantial  part  of  the  case,  existing  at  the  time  the 
original  bill  was, filed. 

In  this  view  of  the  case  the  complainants  stand  in  the 
same  position  in  a  court  of  equity  as  they  would  do  had 
they,  in  their  original  bill,  stated  the  whole  case,  and  set  up 
usury,  instead  of  making  a  partial  statement  of  the  case,  and 
reserving  the  claim  of  usury  until  the  defendant  sets  up  the 
other  facts  of  the  case  by  cross-bill.  If  they  had  set  up  usury 
in  the  original  bill,  they  would  be  compelled  to  pay  the  prin- 
cipal and  legal  interest,  into  court,  or  at  least  offer  to  do  so, 
upon  the  amounts  being  ascertained.  I  am  not  aware  that  a 
party  who  makes  a  partial  statement  of  his  case,  and  afterwards 
amends,  so  as  to  obtain  other  relief,  or  makes  a  new  claim  to 
relief,  in  answer^to  a  cross- bill,  stands  in  any  better  position 


34 

than  he  would  if  he  had  stated  his  whole  case  in  the  first  in- 
stance ;  and  no^authority  has  been  cited  sustaining  such  a  posi- 
tion. Kegarding  the  complainants  in  the  same  position  in 
relation  to  the  question  as  they  would  have  been  had 
they  set  up  usury  in  the  original  bill,  the  same  result  follows 
in  relation  to  usury  as  under  the  interest  statute  of  1849. 
(Moses  v.  Cartel-,  April  term  1864,  and  April  term  1865.) 
Applying  the  rule  in  equity  in  this  case,  the  interest  statutes 
are  referred  to  only  to  determine  what  is  legal  interest  and 
what  is  usurious,  but  the  penalties  are  never  enforced,  upon  the 
principle  that  a  party  who  seeks  equitable  relief  must  himself 
do  or  offer  to  do  equity. 

Now  upon  that  question  of  usury  I  am  not  altogether  clear 
what  the  force  is  of  the  decision  of  the  Supreme  Court  But 
one  thing  is  very  apparent, — that  at  the  time  the  contract  was 
made,  the  interest  statutes  of  1845  and  1849  were  in  force ;  and, 
inasmuch  as  the  statute  of  1849  only  relates  to  a  specific  class 
of  cases — that  is,  usury  taken  for  the  loan  of  money,  (as  I  un- 
derstand the  rule,) — the  statutes  of  1845  and  1849  are  to  be 
construed  together,  and  as  relating  to  the  same  subject  As  I 
understand,  the  Supreme  Court  has  so  decided. 

Now  suppose,  as  a  proper  way  of  testing  it,  that  the  statute  of 
1849,  instead  of  being  a  separate  statute,  was  a  section  of  the 
statute  of  1845 ;  as  I  understand,  in  construing  statutes  in  pan 
materia,  they  are  to  be  construed  as  being  sections  of  the  same 
statute.  The  rule  is  well  settled,  that  where  there  are  general 
words  covering  -a  large  class  of  cases  and  a  specific  provision  in 
relation  to  subjects  of  a  certain  class, — that  the  general  words 
do  not  apply  to  the  particular  specifications,  but  the  particular 
class  which  is  selected  out,  and  in  relation  to  which  the  specific 
provisions  are  made,  has  to  be  governed  by  the  specific  pro- 
visions, and  not  by  the  general  rule.  Now,  apply  this  principle 
to  this  case,  and  regard  the  act  of  1849  as  a  section  added  to  the 
act  of  1845.  The  general  provisions  of  the  act  of  1845  relate 
to  all  classes  of  cases  where  usury  may  be  received  and  taken ; 
it  covers  the  whole.  The  statute  of  1849  only  refers  to  usury 
taken  for  money  loaned;  therefore,  money  loaned  is  to  be 
covered  by  the  provisions  of  the  act  of  1849.  That  is  the  case, 
as  I  construe  it  If  so,  then  whatever  provisions  there  are  in 
the  statute  of  1849,  regarding  it  as  a  portion  of  the  statute  of 


35 

1845,  and  construing  them  together,  the  only  penalties,  and 
the  only  relief  which  a  party  can  have  for  usury,  in  case  of 
money  loaned,  is  the  deduction  of  the  usury.  The  Supreme 
Court  have  given  that  construction  to  it  in  the  case  of  Matthias 
v.  Cooke,  31  Illinois  Eeports,  p.  80.  They  decided  that  the 
usurious  interest  might  be  deducted.  That,  then,  is  the  con- 
struction of  the  Supreme  Court  in  reference  to  the  act  of  1849 
— that  usurious  interest  should  be  deducted  when  it  is  pleaded 
or  set  up  by  way  of  a  defense. 

When  the  decree  is  drawn,  I  shall  permit  the  parties  to  cite 
authorities  by  way  of  showing  what  decree  the  court  should 
render,  in  the  view  which  I  have  taken  of  the  question. 

Complainants  filed  supplemental  bill,  alleging  that  about  the 
12th  of  August,  1864,  the  complainant  Bigelow  had  a  settle- 
ment with  the  defendant  in  relation  to  said  articles  of  agree- 
ment, and  that  Bigelow  paid  Lawrence  $22,557,  and  that  Law- 
rence executed,  under  his  hand  and  seal,  a  release  to  Bigelow  of 
his  portion  of  all  money  due  Lawrence  on  said  articles  of  agree- 
ment, and  asking  that  all  the  covenants  in  the  articles  of  agree- 
ment be  declared  satisfied  and  discharged,  and  that  Lawrence 
be  decreed  to  reconvey  to  the  complainants  the  premises  con- 
veyed to  him  by  the  complainants.  To  this  defendant  answers 
upon  oath,  denying  that  the  paper  called  a  release  was  sealed 
when  he  signed  it,  and  in  any  event  that  the  prayer  of  the  com- 
plainants ought  not  to  be  granted. 

The  only  remaining  questions  relate,  1st,  to  the  fact  of  the 
release  being  under  seal  when  signed ;  and,  2nd,  to  the  rights  of 
the  parties  in  equity  upon  a  release  under  seal  of  one  of  several 
joint  obligors,  when,  from  the  instrument  itself,  it  is  apparent 
that  it  was  not  intended  to  release  the  other  joint  obligors. 

In  relation  to  the  first  question,  the  proof  is  very  contradic- 
tory and  unsatisfactory.  The  witnesses  were  all  examined  in 
open  court,  and  there  was  nothing  in  their  appearance  or  man- 
ner of  testifying  which  would  justify  any  oiie  in  saying  they, 
or  either  of  them,  was  unworthy  of  belief,  or  that  any  particu- 
lar statement  made  by  either  of  them  is  designedly  false ;  and 
still  some  one  of  them  must  be  mistaken.  Lawrence,  in  his 
answer,  swears  it  was  not  sealed  when  he  signed  it.  No  one  of 
the  witnesses  was  present  when  it  was  signed,  and  therefore 
cannot  state  the  condition  of  the  instrument  at  that  time. 
Phillips  swears  that  the  present  release,  which  he  identifies,  had 


36 

a  yellow  seal  upon  it  while  it  was  unsigned,  and  before  Law- 
rence came  into  the  office  ;  that  he  cut  out  a  seal  with  a  pair  of 
shears,  and  that  Chapman  affixed  it  to  the  paper,  by  mucilage, 
in  his  presence,  and  then  handed  it  to  Bigelow.  Mr.  McAllis- 
ter swears  that  he  was  present  when  the  same  release  was  in  the 
hands  of  Bigelow,  unsigned,  and  with  a  yellow  seal  upon  it,  as 
described  by  Phillips,  and  that  Bigelow,  at  his  suggestion,  and 
in  his  presence,  wrote  upon  the  seal  the  letters  "seal"  The 
paper  being  identified  as  the  same,  this  proof  would  be  conclu- 
sive against  the  statement  of  Lawrence,  if  the  identity  of  the 
seal  was  established.  But  this  is  not  done.  Mr.  McAllister, 
who  saw  Bigelow  write  the  letters  "  seal"  does  not  swear  that 
the  same  letters  on  the  seal  of  the  instrument  produced  are 
those  made  by  Bigelow  in  his  presence,  or  that  they  are  in  the 
handwriting  of  Bigelow.  All  that  these  witnesses  swear  to  may 
be  true,  and  still  the  answer  of  Lawrence  be  true,  as  the  seal 
might  have  been  removed  before  signing.  Besides,  it  would 
seem  to  be  easy  to  identify  the  letters  on  the  seal  to  be  in  Big- 
elow's  handwriting  if  they  were  so.  On  the  other  hand,  to  sus- 
tain the  statement  of  Lawrence,  Mr.  Chapman  swears  that  he 
wrote  the  instrument  at  the  request  of  Bigelow,  and  that  on  the 
day  after,  or  later,  Bigelow  brought  the  release  to  him,  as  he  thinks, 
with  the  signature  of  Lawrence  to  it,  and  requested  him  to  put 
a  seal  upon  it,  which  he  did.  That  he  wrote  the  letters  "seal" 
on  the  seal  now  upon  the  instrument  identified  as  the  release  ; 
and  he  swears  that  the  letters  "  seal,"  are  in  his  handwriting. 
Phillips  swears  that  the  e  and  a  look  like  Chapman's — the  s  and 
I  do  not,  but  that  still  he  may  have  written  them.  No  witness 
swears  they  are  in  the  handwriting  of  Bigelow.  If  not,  the 
present  seal  is  not  the  one  seen  by  McAllister,  and  there  is  no 
evidence  that  there  was  a  seal  upon  the  instrument  when  it  was 
signed.  The  statement  of  McAllister,  in  relation  to  the  time 
when  he  obtained  possession  of  the  instrument  from  Bigelow, 
is  inconsistent  with  the  statement  of  Chapman  in  relation  to  the 
time  of  sealing  the  release;  but  Chapman's  identifying  the  seal 
by  the  letters  on  it,  in  his  handwriting,  to  which  he  swears 
positively,  and  in  relation  to  which  he  could  hardly  be  mis- 
taken, shows  that  the  seal  to  which  McAllister  refers,  was  not 
the  seal  now  upon  the  release.  Lawrence  swears  there  was  no 
seal  on  the  instrument  when  he  signed  it,  and  Chapman  swears 


37 

that  he  put  on  this  identical  seal  after  it  was  signed,  at  the  re- 
quest of  Bigelow. 

Though  technically  the  weight  of  testimony  is  against  the 
complainants  on  this  point,  I  am  unwilling  to  decide  a  question 
supposed  to  be  so  important  in  its  results,  unless  compelled  to 
do  so,  upon  the  mere  weight  of  testimony,  when  there  is  so 
much  uncertainty,  and  the  evidence  is  so  contradictory.  I  ap- 
prehend the  complainants  entirely  misapprehend  the  force  and 
effect  of  this  instrument  in  equity. 

Assuming,  for  the  sake  of  argument,  that  the  release  was 
sealed  when  it  was  signed,  the  question  is,  what  is  its  force  and 
effect  in  a  court  of  equity  ?  The  discharge  of  one  joint  obli- 
gor by  a  simple  release,  under  seal,  or,  as  it  is  called,  a  techni- 
cal release,  is  a  discharge  of  all  the  obligors,  both  at  law  and  in 
equity.  This  was  expressly  decided  by  Lord  Hardwicke  in 
Bowen  v.  Swadlin,  1  Atkins,  p.  294,  and  there  is  no  case,  so  far 
as  I  am  advised,  where  a  different  rule  has  been  adopted.  But 
where  the  instrument  is  not  a  simple  release,  a  court  of  equity 
will  consider  the  instrument  so  as  to  give  effect  to  the  intention 
of  the  parties,  and  this  is  done  even  at  law,  when  the  plaintiff, 
in  replying  to  the  release  pleaded,  aleges  that  he  only  seeks  to 
charge  the  parties  not  expressly  released.  (North  v.  Wake/kid, 
66  Eng.  C.  L.,  p.  536  ;  Willis  v.  De  Castro,  93  Eng.  C.  L.,  p. 
215  ;  30  B.  and  C.,  p.  211.) 

In  the  present  case  the  instrument  is  not  a  technical  release, 
and  there  can  be  no  question  in  relation  to  the  intention  of  the 
parties,  for  the  language  of  the  instrument  is  explicit  and  unam- 
biguous. The  words  are,  "  if  the  property  mentioned  in  the 
above  articles  has  to  be  sold  under  an  order  of  the  court  at  Chi- 
cago, the  interest  of  said  Bigelow  in  it  is  to  be  protected,  accord- 
ing to  this  settlement.  Nothing  herein  contained  shall  in  any  wise 
affect  my  rights  or  demand  against  said  Parmelee,  Gage  or  John- 
son, or  their  interest  in  said  property. "  But,  in  addition  to  this,  the 
attorney  of  Bigelow  swears  that  he  first  wrote  a  technical  re- 
lease, which  Lawrence  refused  to  sign  ;  that  he  then  wrote  the 
above  clauses  to  satisfy  Lawrence.  There  can  be  no  question 
in  relation  to  the  intention  of  the  parties,  and  I  apprehend  there 
is  as  little  doubt  that  a  court  of  equity  can  compel  the  specific 
performance  of  a  contract  or  obligation,  according  to  the  intent 
of  the  parties,  as  shown  by  the  obligation  itself  A  court 
will  not  construe  an  instrument  as  a  release,  merely  because  the 


38 

word  "  release  "  is  used  in  it ;  but  when  it  is  evident,  from  the 
language  of  the  instrument,  that  it  was  not  intended  to  operate 
as  a  technical  release,  it  will  be  construed  as  only  an  agreement 
not  to  charge  the  person  or  party  to  whom  it  is  given.  (Solly  v. 
Forbes,  2  Brod.  &  B.,  p.  46  ;  Kirby  v.  Taylor,  6  Johns.  C.,  p.  242  ; 
Olagettv.  Salmon,  5  Gill  &  J.,  p.  351.) 

It  would  be  indeed  a  strange  anomally  if,  as  contended  by 
the  complainants,  a  court,  which  has  special  and  aqnclusive  juris- 
diction to  compel  the  specific  performance  of  obligations,  had 
no  power  to  enforce  the  obligation  according  to  the  intent  of 
the  parties,  as  it  appears  from  the  obligation  itself;  but,  on  the 
other  hand,  was  compelled  to  decree  a  performance  of  the  obli- 
gation palpably  contrary  to  the  intent  of  the  parties,  and  this 
in  a  case  where  the  party  asking  this  action  on  the  part  of  the 
court  voluntarily  comes  into  a  court  of  equity  to  obtain  equita- 
ble relief.  When  courts  of  equity  become  so  hampered  by  de- 
cisions and  precedents  that  they  cannot  enforce  obligations 
according  to  the  intent  of  the  parties,  as  expressed  by  the  obli- 
themselves,  and  by  the  same  precedents  to  release  men 
from  their  legal  obligations  and  decree  contrary  to  justice,  equi- 
ty and  conscience,  it  will  be  high  time  to  abolish  such  courts, 
or  change  their  name.  The  doctrine  in  the  case  of  Bower  v. 
*Swadlin,  before  cited,  is  confined  to  a  technical  release,  as  is 
evident  by  Lord  Hardwicke's  subsequent  decision.  In  Cole  v.  Gib- 
son,  10  Yesey,  p.  503,  he  said  that  equity  would  restrain  a  gen- 
eral release  to  what  was  under  consideration  at  the  time  ;  and 
decides  in  Ramsay  v.  Hylton,  2  Yesey,  p.  204,  that  a  recital  in  a 
general  release  is  to  have  the  same  effect  in  equity.  Chancellor 
Kent,  in  Kirby  v.  Taylor,  speaking  of  the  equitable  doctrine  on 
this  subject,  says  ;  "A  release  is  to  be  construed  according  to  the 
intent  and  object  of  it,"  and  that  intent  will  control  and  limit 
its  operation.  This  case  was  decided  in  1822,  and  no  court  of 
equity,  so  far  as  I  am  advised,  has  since  repudiated  this  doc- 
trine, or  established  a  different  rule.  On  the  other  hand,  this 
case  is  frequently  cited,  and  always  with  approbation.  (Clagett 
v.  Salmon,  5  Gill  &  J. ;  Lysaght  v.  Phillips,  6  Duer,  p.  116  ; 
Parsons  on  Contracts. 


KFZ 

1330 


